Bombay High Court
Smt. Chhaya Yuvaraj Dahiwal And Another vs State Of Maharashtra, Thorugh Acb, ... on 6 June, 2023
Author: G. A. Sanap
Bench: G. A. Sanap
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL REVISION APPLICATION (REVN) NO.22 OF 2014
1. Smt Chhaya Yuvaraj Dahiwal
Aged 56 Yrs., Occ.: Business,
2. Mr Sourabh Yuvaraj Dahiwal,
Aged 34 Yrs., Occ.: Business,
Both R/at 11/12, Rajchhaya, next to
Sahyog Mangal Karayalay, Basmat Road,
Parbhani .... APPLICANTS
// V E R S U S //
State of Maharashtra,
Through ACB, Nagpur ... NON-APPLICANT
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Mr Rohan Nahar, Adv. a/w. Mr V. U. Waghmare and Mr A.P. Paliwal,
Advocates for the applicants
Ms M. H. Deshmukh, APP for non-applicant
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CORAM : G. A. SANAP, J.
JUDGMENT RESERVED ON : 21/04/2023
JUDGMENT PRONOUNCED ON : 06/06/2023
JUDGMENT :
1 Heard. 2 In this criminal revision application, challenge is to the ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 2
order dated 27.11.2013 passed by the learned Special Judge, Nagpur in Special (ACB) Case No. 07/ 2011, whereby the learned Special Judge rejected the application made by the accused Nos. 1 and 2 for their discharge in the case.
3 The facts relevant for the purpose of this revision are as follows:
Deceased- Yuvraj Kashinath Dahiwal was the husband of accused No. 1 and the father of accused No.2. In the complaint, the allegation was made against deceased Yuvraj, who was the Government Servant, that he accumulated the property of Rs.49,08,291/- (Rs. Fourty Nine Lacs Eight Thousand Two Hundred and Ninety One only) dis-proportionate to the known sources of his income. On receipt of the complaint, he was called upon to explain the same. His explanation was not found satisfactory and therefore, the crime bearing No. 3017 of 2005 came to be registered against him as well as the accused Nos. 1 and 2 for the offences punishable under Section 13 (1)(e) read with Section 13 (2) of the Prevention of Corruption Act, 1988 ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 3 (hereinafter referred to as 'the P.C. Act') and under Section 109 of the Indian Penal Code (hereinafter referred to as 'the I.P.C.) at Sakkardara Police station, Nagpur. During the course of the investigation, the deceased public servant as well as accused Nos. 1 and 2 were called upon to explain the source of money for accumulation of the property which was found prima facie disproportionate to the known sources of income of the deceased Government Servant. Their explanation was not found satisfactory.
The investigation revealed that the deceased Government Servant accumulated property worth Rs.49,08,291/- (Rs. Fourty Nine Lacs Eight Thousand Two Hundred and Ninety One only), which was disproportionate to the known sources of his income. The investigation further revealed that accused Nos. 1 and 2, being wife and son of the deceased Government Servant, abetted the commission of the offence by the deceased public servant. Public servant Mr. Dahiwal died on 11.10.2010 before filing the charge- sheet. However, by that time the major part of the investigation was over. After his death, the charge-sheet came to be filed against the accused Nos. 1 and 2, in the Special Court designated under the ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 4 P.C. Act, for the offences punishable under Section 109 of the I.P.C. read with Section 13 (1)(e) read with Section 13 (2) of the P.C. Act on 16.08.2011. Learned Judge took the cognizance of the offences against the accused Nos. 1 and 2.
4 Accused Nos.1 and 2 filed an application under Section 227 of the Code of Criminal Procedure, 1973 for their discharge. It is their contention that they are not the public servant and therefore, Section 13 (1)(e) read with section 13 (2) of the P.C. Act could not be attracted against them. The main accused who was the Government Servant died before filing the charge-sheet and therefore, the prosecution came to an end against him on his death. It is stated that therefore by invoking Section 109 of the I.P.C. the prosecution against them could not be continued. According to them, deceased Yuvraj Dahiwal was the principal accused and therefore, after his death accused Nos. 1 and 2 being the abettor could not be prosecuted. In the absence of the principal offender they would suffer prejudice inasmuch as the Government Servant was expected to explain the source of his income. According to ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 5 them, there is no material in the charge-sheet to come to a conclusion that the accused Nos. 1 and 2 instigated deceased Yuvraj Dahiwal or engaged in conspiracy with him to commit crime. Accused Nos. 1 and 2 have their independent source of income. They are income tax payee. They have explained the source of their income and also the source for purchase of the property. The investigation officer caused inordinate delay in filing the charge- sheet. According to them, the material on record is sufficient to satisfy that the property in possession of the deceased Yuvraj Dahiwal was not disproportionate to his known sources of income. 5 This application was opposed by the prosecution. It is contended that accused No.1 is the wife and accused No. 2 is the son of deceased Yuvraj Dahiwal. There is sufficient material to show that they abetted deceased Yuvraj in the commission of crime of the accumulation of assets disproportionate to his known sources of income. The evidence compiled in the charge-sheet is sufficient to presume that they have committed the crime. It is further contended that simply because of the death of the Government ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 6 Servant, accused Nos.1 and 2 being the abettor of the commission of crime by the deceased Government Servant, under the P.C. Act, cannot be discharged.
6 Learned Special Judge after granting an opportunity of hearing to the parties found that in the facts and circumstances he has jurisdiction to entertain and try the case against the accused Nos. 1 and 2. Learned Judge also found that the accused Nos. 1 and 2 being an abettor in the commission of the offences under the P.C. Act they cannot get away with the crime prima facie made out against them due to death of the Government Servant. Learned Judge found that the material on record is sufficient to presume that the accused Nos. 1 and 2 have committed the offence for which they have been prosecuted. Learned Judge found that in the teeth of evidence on record case was not made out for the discharge. Learned Special Judge accordingly dismissed the application. The accused Nos.1 and 2, being aggrieved by this order, are before this Court in revision.
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revn.22.2014 judge.odt 7 7 I have heard Mr Rohan Nahar, learned Advocate for the accused Nos. 1 and 2 and Ms Mayuri Deshmukh, learned APP for the State. I have gone through the record and proceedings. 8 Learned Advocate for the accused Nos. 1 and 2 submitted that the learned Special Judge has committed patent illegality in rejecting the application made by accused Nos. 1 and 2 for their discharge. Learned Advocate relying upon the decision of the Co-ordinate Bench of this Court in the case of Prakash Ramaji Ambagade and Another .v/s. State of Maharashtra 1 submitted that the accused Government Servant who was the main accused in this crime died during the pendency of the investigation and therefore, the offence alleged to have been committed by accused Nos. 1 and 2 cannot be proved against them in the absence of the public servant and more particularly the offence of abetment cannot be proved against them. Learned Advocate submitted that in the similar state of facts the Co-ordinate Bench has held that in view of death of the Government Servant the offence of abetment of the offence 1 2015 ALL MR (Cri) 1564 ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 8 committed by the Government Servant cannot be proved against remaining accused, who have been roped in with the aid of section 109 of the I.P.C. read with the offences under the P.C.Act. Learned Advocate submitted that there is no iota of evidence to substantiate the case of the prosecution that the accused Nos.1 and 2 abetted the commission of the offence by the deceased Government Servant under Section 13 (1)(e) read with section 13 (2) of the P.C. Act. Learned Advocate therefore submitted that the accused Nos. 1 and 2 would be prejudiced, in the absence of the deceased Government Servant, to explain the source of income to acquire the property. Learned Advocate further submitted that after the death of the Government Servant, accused Nos. 1 and 2 cannot be tried for the offences under the P.C. Act. It is submitted that at the most they could be tried for the non P.C. Act offences. Learned Advocate therefore submitted that the learned Judge of the Special Court would have no jurisdiction to try the non P.C. Act offences against the accused Nos.1 and 2. Learned Advocate submitted that the material complied in the charge-sheet is not sufficient to satisfy the basic requirement of the abetment of the commission of the ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 9 offences under the P.C. Act by the accused Nos. 1 and 2. Learned Advocate submitted that the material complied in the charge-sheet is not sufficient to frame charge against accused Nos. 1 and 2. Learned Advocate submitted that learned Special Judge was not right in rejecting the application made for discharge by accused Nos. 1 and 2. Learned Advocate in order to substantiate his submissions relied upon the following decisions:
i. Central Bureau of Investigation .v/s. V. C. Shukla and others, reported in, (1983) 3 SCC 410 ii. State of Maharashtra .v/s. Ramdas Shankar Kurlekar and another, reported in, 1999 Cr.L.J. 196 iii. State, through CBI, New Delhi .v/s. Jitendra Kumar Singh, reported in, 2014 AIR SCW 1153 iv. Abhishek Shrivastava .v/s. U.O.I., reported in, AIRONLINE 2011 ALL 3849 v. Amara Krishna Mohan Rao and Others .v/s. State of A.P., reported in, 2012 Cri.L.J. 969 vi. Prakash Ramaji Ambagade and Another .v/s. State of Maharashtra, reported in, 2015 ALL MR (CRI) 1564 ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 10 9 Learned APP submitted that accused Nos. 1 and 2 even after the death of the Government Servant would squarely falls within the dragnet of Section 109 of the I.P.C. read with Section 13 (1)(e) read with Section 13 (2) of the P.C. Act. Learned APP submitted that in this case the offence of abetment, supported by the evidence collected during the course of investigation, is separate, distinct and substantive offence. Learned APP submitted that the death of the Government Servant would not stand in the way of the prosecution to prove the accumulation of the assets disproportionate to the known sources of the deceased Government Servant and the abetment of the said crime by accused Nos. 1 and 2. Learned APP submitted that since the accused Nos. 1 and 2 are being tried for a distinct and substantive offence and therefore, they cannot get benefit of death of the Government Servant. Learned APP submitted that if such a view is taken then the same would render the provision of the law nugatory and otiose. Learned Advocate submitted that the decision rendered by the Co-ordinate Bench of this Court is required to be considered in view of the settled position of law laid down in numerous decisions on this point and if ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 11 considered in the backdrop of the settled legal position it will have to be held to be per incuriam. Learned APP submitted that if such a view is taken then in every prosecution under the P.C. Act after the death of Government Servant the other accused who are roped in criminal case with the aid of Section 109 read with the offences under the P.C. Act would go unpunished. Learned APP submitted that to adduce the evidence and to prove the relevant charge, is the concern of the prosecution. Learned APP submitted that on assumption of the difficulty on this count by the Court, the accused cannot be allowed to go scot-free. Learned APP further submitted that the prosecution in each case is competent to take care of such aspect. Learned APP further submitted that the offences committed by the accused would squarely fall within the ambit of Section 109 of the I.P.C. read with Section 13 (1)(e) read with Section 13 (2) of the P.C. Act and therefore, by virtue of the provision of Section 3(1) of the P.C. Act, the offences committed by the accused would fall within the scope of the said Section. Learned APP therefore submitted that by virtue of Section 3 read with Section 4 of the P.C. Act learned Special Judge has jurisdiction to try the accused Nos. 1 ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 12 and 2. Learned APP submitted that there is ample evidence on record to presume that the accused Nos. 1 and 2 have committed the offences as mentioned above. Learned APP submitted that at the stage of discharge the mini trial cannot be conducted by appreciating the evidence or by considering the pros and cons of the case of the prosecution and the evidence on record. Learned APP in support of her submissions placed heavy reliance on following decisions:
i. Siddarth Verma .v/s. CBI, reported in , 2010 (4) CCR 214 ii. HCL Infosystem Limited .v/s. Central Bureau of Investigation, reported in, (2016) 9 SCC 281 iii. High Court on its own motion .v/s. State of Maharashtra in Suo Motu Revision Application No. 16 of 2015, dated 04.06.2018 iv. P. Nallammal and Another .v/s. State Represented by Inspector of Police, reported in, (1999) 6 SCC 559 10 In the backdrop of the submissions advanced by the learned Advocate for the accused and the learned APP this Court is primarily required to decide following three issues:::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 :::
revn.22.2014 judge.odt 13 i. Whether the prosecution would abate or stand terminated against accused Nos. 1 and 2 in the backdrop of the allegations against them, after the death of the Government Servant ?
ii. Whether the Special Court will have a jurisdiction to try the case against accused Nos. 1 and 2 ? and iii. If the answer to the above questions is against accused Nos. 1 and 2 and in favour of the prosecution then, whether the evidence compiled in the charge-sheet would be sufficient to presume that the accused Nos. 1 and 2 have committed the offences under Section 109 of the I.P.C. read with Section 13 (1)(e) read with section 13 (2) of the P.C. Act ?
11 At the outset, I will deal with the first issue. Learned Advocate relied mainly on decision of Co-ordinate Bench of this Court in the case of Prakash Ambagade (supra). It would be necessary to state that the facts of this case and the facts of the case on hand before me are identical. In this case, the accused No. 2 was the wife of the Government Servant, who was accused No.1. The Government servant died after filing of the charge-sheet. The wife-::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 :::
revn.22.2014 judge.odt 14 accused No.2 was prosecuted for the offence under Section 109 of the I. P. C. read with Section 13 (1)(e) read with Section 13 (2) of the P.C. Act. The application was made by the wife for discharge. It was rejected by the learned Special Judge. In the revision, the Co- ordinate Bench set aside the said order. The reasons recorded for setting aside the order can be seen from para 6 of the order. Para No. 6 is extracted below for the purpose of convenience.
"6. The present applicant no.2, who is accused no.2, is a non-public servant and is facing a prosecution for commission of offence of collecting assets by a public servant disproportionate to his known sources of income. The public servant, the original accused no.1 and husband of present applicant, is no more alive and, therefore, learned counsel for applicant no. 2 submits that the offence alleged against the applicant cannot be proved. Though, learned APP disagrees, he could not show to me as to how the offence of abetment as alleged against the applicant no. 2 could be proved in the absence of the public servant, deceased applicant no. 1 or accused no. 1. If it is the case that the main offence of amassing illegal wealth disproportionate to the known sources of income cannot be proved by the prosecution against the public servant, i.e. accused no. 1, having regard to the nature of allegations made against applicant no. 2, offence of abetment of the offence can obviously be not proved against the person who is not a public servant, i.e. accused no.2. Allegations against applicant no. 2 or accused no. 2 are that she abetted the commission of offence by her husband, the ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 15 accused no. 1, by intentionally aiding him to amass the wealth. The intentional aiding was in the nature of holding in her name the assets purchased by her husband using ill-gotten money. The fact that funds used for purchasing assets were supplied by the husband, the deceased public servant, has to be proved first in this case. It cannot be proved in the absence of deceased public servant and, therefore, offence of abetment of the nature alleged against his wife, the non-public servant, cannot also be proved."
12 The Co-ordinate Bench of this Court has held that the main offence of amassing illegal wealth disproportionate to the known sources of income cannot be proved by the prosecution against the public servant, i.e. accused No.1, having regard to the nature of the allegations made against accused No.2. It is held that the offence of abetment of the offence can obviously be not proved against the person who is not a public servant. It is held that this charge cannot be proved in the absence of deceased public servant and therefore, offence of abetment against the wife cannot also be proved. Learned APP submitted that this observation is per incuriam inasmuch as the settled legal position is different from what has been set out in para 6. It is seen that the Co-ordinate ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 16 Bench in support of this conclusion has placed reliance on the decision in the case of Amara Krishna Mohan Rao and Others .vs. State of A.P.2 13 In order to appreciate the submissions advanced by the learned APP it would be necessary to consider the issue by doing the survey of the reported decisions of the Apex Court as well as the High Courts. In the case of P. Nallammal and Another .v/s. State Represented by Inspector of Police 3, the Hon'ble Apex Court has held that clause (b) of Section 3(1) of the P.C. Act encompasses the offences committed in conspiracy with others and by abetment of "any of of the offences" punishable under the P.C. Act. If such conspiracy or abetment of "any of the offences" punishable under the P.C. Act can be tried "only" by the Special Judge, it is therefore inconceivable that the abettor or the conspirator can be delinked from the delinquent public servant for the purpose of trial of the offence. In the case on hand the offences alleged to have been committed by the accused Nos. 1 and 2 falls in the category of the 2 2012 Cri.L.J. 969 3 (1999) 6 SCC 559 ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 17 offences provided under Section 3(1) of the P.C. Act. 14 During the course of argument it was pointed out that the view taken by the Co-ordinate Bench in the decision of Prakash Ambagade (supra) runs counter to the judicial pronouncements of this Court as well as the Supreme Court. It would therefore be necessary to consider those decisions.
15 The first decision is of the Division Bench of Madhya Pradesh High Court in the case of Pankaj Pathak .v/s. The State of Madhya Pradesh, decided on 28.01.2013 (Cri revision No. 2020 of 2012). Para No. 6 and 7 of the decision would be relevant. The same are extracted below "6. Under the Indian Penal Code abetment of an offence is a separate substantive offence. The Supreme Court in the case of Faguna Kanta Nath (supra) has categorically held that under the Indian Law for an offence of abetment it is not necessary that the offence should have been committed and a man may be guilty as an abettor whether the offence is committed or not. The Supreme Court later again in the case of Jamuna Singh (supra) has reiterated that it cannot be held in law that the person cannot ever be convicted of abetting a certain offence when ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 18 the person alleged to have committed that offence in consequence of the abetment has been acquitted. The law on the point is, thus, settled that a person can very well be convicted of abetting an offence even though a person alleged to have committed that offence has been acquitted. Applying the same analogy, a person can also be convicted of abetting an offence even in the event of the death of principal accused during the trial who allegedly committed that offence.
7. In the present case, as already stated above, the allegation of respondent is that the applicant alongwith his co-accused brother Prashant Pathak not only abetted their father G. P. Pathak (main accused) in committing the offences under sections 13(1)(e) and 13(2) of the Act, they also deposited in different accounts fake receipts and vouchers regarding agricultural produce showing them as real and for this charge under section 471 of the Indian Penal Code has been framed against them. In P. Nallammal (supra) the Supreme Court has clearly held that a non-public servant can also be tried for abetment of an offence under section 13(1)(e) of the Act. For these reasons, we are of the considered view that the above referred cases cited on behalf of the applicant do not help him. In the fact situation of the case, the trial court has rightly dismissed the applicant's application for his discharge of the offences under section 109 of the Indian Penal Code, 1860 read with sections 13(1)(e) and 13(2) of the Act and section 471 of the Indian Penal Code, 1860. It is reported that now the evidence of 39 prosecution witnesses have been recorded. The trial court is, therefore, expected to conclude the trial expeditiously."
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revn.22.2014 judge.odt 19 16 The offences in the case before the Madhya Pradesh High Court were under Sections 109 and 471 of the I.P.C. In that case also the principal offender, the Government Servant, had died. The accused, roped in with the aid of Section 109 read with Section 13 (1)(e) read with Section 13 (2) of the P.C. Act, had applied for the discharge. The Division Bench of the Madhya Pradesh High Court held that the offences under Section 109 read with Section 13 (1)(e) read with Section 13 (2) of the P.C. Act would not get abetted on the abatement of the prosecution against the deceased Government Servant. The Madhya Pradesh High Court has in support of this conclusion relied upon the decisions of the Hon'ble Apex Court in the case of Faguna Kanta Nath .v/s. State of Assam, reported in, AIR 1959 SC 673, Jamuna Singh .v/s. State of Bihar, reported in, AIR 1967 SC 553 and P. Nallammal (supra). 17 The identical question fell for the consideration of the Division Bench of the High Court of Orissa in the case of Aarti Sahoo @ Behera .v/s. State of Orissa (VIG), reported in, 2019 (1) ILR-CUT 694. The principal offender in the said case was charged ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 20 for the offence punishable under Section 13 (1)(e) read with section 13 (2) of the P.C. Act and the second accused was charged with the aid of Section 109 of the I.P.C. The accused persons were husband and wife. The husband died during the pendency of the proceedings. The wife made an application and prayed that the proceeding against her would also get terminated on the death of the Government Servant. The special Court had rejected the said application. Para Nos. 2, 7, 8 and 9 of the decision would be relevant. The same are extracted below.
"2. Brief facts of the case is that a criminal case under Sections 13(1)(e) read with 13(2) of the P.C. Act and Section 109 of the IPC was initiated bearing T.R.No.15 of 2008 in the Court of the learned Special Judge, Special Court, Cuttack against the petitioner and her late husband. Obviously, the allegation was that the husband of the petitioner, who was a public servant, was in possession of disproportionate assets and hence, charge-sheet filed against him under Section 13(1)(e) read with 13(2) of the P.C. Act. Whereas most of the properties stands in the name of the petitioner, who is not a public servant and admittedly, she is not an income tax assessee, the charge under Section 13(1)(e) read with 13(2) of the P.C. Act and Section 109 of the IPC has been framed against her. Fifty-seven witnesses have been examined. The accused-public servant, who happens to be the husband of the petitioner died and the case abated against him.::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 :::
revn.22.2014 judge.odt 21 Thereafter, the present petitioner filed an application before the learned Special Judge, Special Court, Cuttack that the criminal case cannot be continued against her, in view of the death of her husband, the main accused. That application was heard and disposed of by the learned Special Judge, Special Court, Cuttack on 09-08-18. While dealing with the same, the learned Special Judge, Special Court, Cuttack said that even in case of death of the main offender, the case shall stand against the abettor.
07. Moreover, in the case Wakil Yadav and another v. State of Bihar, (2001 SCC (Cri.) 1499), the Hon'ble Supreme Court held that abetment to an offence of corruption was itself a distinct offence for which a charge could be framed. Now, in this case, even if the charge under Section 13(1)(e) read with 13(2) of the P.C. Act could not be proved, Section 13(1)(e) read with 13(2) of the P.C.Act and Section 109 of the IPC being separate and distinct charge, the trial is to be continued.
08. Similarly, Mr. Srimanta Das, learned Senior Standing Counsel for the Department of Vigilance Department brings to the notice of this Court on a reported judgment rendered by Hon'ble Justice Shiv Narayan Dhingra of High Court of Delhi in the case of SIDDARTH VERMA v. C.B.I. , 2010 (4) CCR 214, wherein it has been held:
"I consider that learned Special Judge rightly dismissed the application of the petitioner for discharge. Charges were framed against two accused persons, against one for substantive offence and against other for abetment. If the main accused has died, that does not mean that substantive offence stands wiped out. The offence committed by the deceased, accused of amassing wealth through corrupt means, does not stand wiped out and the wealth still stands there in the hands of LR of the ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 22 deceased /accused and the role of the petitioner of acting as a conduit for amassing wealth for his father can be proved by CBI during trial. I, therefore, find no force in this petition. The petition is hereby dismissed."
09. In view of such verdicts/ pronouncements and our discussions made above, we are of the opinion that we cannot pass any order to quash the aforesaid proceeding against the petitioner under the Special Courts Act, 1979."
18 It is to be noted that the Division Bench of the Orissa High Court has considered the decision of the Single Bench of the Delhi High Court in the case of Siddharth Verma .vs/. CBI, reported in, 2010 4 CCR 214. This decision of the Delhi High Court has been relied upon by the learned APP. Wherein it is held that if the main accused died, that does not mean that the substantive offence stands wiped out. The offence committed by the deceased, accused of amassing wealth through corrupt means, does not stand wiped out and the wealth still stand there in the hands of L.R. of the deceased and the role of the L.R. of acting as a conduit for amassing wealth of his father can be proved against them during the trial. The Division Bench of the Orissa High Court has considered the decision of the Hon'ble Apex Court in the case of ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 23 Wakil Yadav .v/s. State of Bihar4. In this case, the Hon'ble Apex Court has held that the abetment to an offence of a corruption was itself distinct offence for which a charge could be framed. It is held that even if the charge under Section 13 (1)(e) read with Section 13 (2) of the P.C. Act could not be proved even then Section 13 (1)(e) read with Section 13 (2) of the P.C. Act and Section 109 of the I.P.C., being separate and distinct charge, the trial for those offences has to be continued. The law laid down by the Hon'ble Apex Court in the case of Wakil Yadav (supra) is required to be borne in mind while appreciating the submission of the learned APP that the decision in the case of Prakash (supra) was rendered without considering this settled position in law.
19 There is one more decision of the Co-ordinate Bench of the Bombay High Court in the case of Maushami Amarnath Batabyal .v/s. State of Maharashtra, reported in, 2005 SCC ONLINE BOM 913 (Criminal Revision Application No. 513 of 2002, decided on 08.08.2005). The facts of this case and the facts 4 (2001) SCC (Cri.) 1499 ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 24 of the case on hand are identical. The accused No. 1 was the husband. The accused No.2 was the wife. The accused No.1 husband, who was the Government Servant, died on 28.07.2002. The wife applied before the Court for termination of proceedings against her because the proceedings had abated against her husband. The wife was charged for the offences under Section 109 of the I.P.C. read with Section 13 (1)(e) read with section 13 (2) of the P.C. Act. Co-ordinate Bench in this case considered the numerous decisions of the Hon'ble Apex Court as well as of the various High Courts. For the purpose of proper understanding it would be necessary to extract para Nos. 7 to 12 of this judgment. Para Nos. 7 to 12 reads thus:
"7. The next question as is required to be addressed is, what is the consequence or effect of such abatement of the trial. There is no provision either in the Code or any other law brought to my notice, which provides for consequences of abatement of criminal proceedings. Expression "abatement" is not defined in the Act or the Code. That leaves us to rely on the dictionary meaning of expression "abate". The Judicial Dictionary, 12th Edition of KJ. Aiyar's has spelt out the meaning of expression "abate" as follows:-
"Abate: is a generic term derived from French word ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 25 "Abatre" and signifies to quash, to beat down or destroy. "Abate" means to throw down, to beat down, destroy or quash (Black's Law Dictionary, Fifth Ed.). To diminish or take away, to prostrate, to beat down remove or destroy; also to let down or cheapen the price in buying or selling. [Encyc. L., Stroud, P-5].
To prostrate, break down, remove, or destroy; also to let down or cheapen the price in buying or selling. [Wharton's Law Lexicon, 1976 Reprint Ed.].
Expression "abatement" has been separately spelt out, in the same dictionary. "Abatement of criminal proceedings" has been termed to mean their termination without a decision on the merits and without the assent of the prosecutor. If this is the legal position or meaning of abatement, it is incomprehensible as to how the abatement of criminal proceedings as against Accused No. 1 should result in terminating the entire action, even against the surviving co-accused independently charged for abetment under Section 109 of I.P.C. Indubitably, the abatement of criminal proceedings as against one of the accused even if principal accused, by itself cannot be the basis to terminate the entire criminal action, assuming that the remaining accused (co-accused) are charged only for abetment under Section 109 of L.P.C.
8. To get over this position, Counsel for the Applicant relied on the decision of the Apex Court in the case of Central Bureau of Investigation v. V.C. Shukla, AIR 1998 SC 1406. In my opinion, this decision is of no avail to the Applicant herein. In that case, the gravamen of the charge against the co- accused Jains was that they had entered into two ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 26 separate agreements one with Shri Shukla and the other with Shri Advani, in terms of which they were to make certain payments to them as a gratification other than legal remuneration as a motive or reward for getting their favour while they were 'public servants and in pursuance of the said agreements payments were actually made to them. The Court on analysing the material on record positively found that the prosecution was not able to make out prima facie case to prove that shri Advani and Shri Shukla were parties to such conspiracy. On this finding, the Court proceeded to hold that, the theory of conspiracy as framed/sought to be framed cannot stand also against the Jains for the simple reason that in a conspiracy there must be atleast two parties. In other words, the exposition in the said decision is on the fact situation of that case. In paragraphs 49 to 51 of the same judgment, the Apex Court has analysed the relevant provisions including Section 107 of the I.P.C. and noted that, as the case before it fell within the third clause and not the first and second clause, the co- accused who is charged of abetment under Section 109 ought to succeed along with the principal offender. The legal position as to the purport of charge of abetment has been considered by the Apex Court in Jamuna Singh v. State of Bihar, reported in AIR 1967 SC 553. On analysing the relevant provisions such as Sections 107 to 109 of I.P.C. and the decisions on the point, it is observed by the Apex Court that it cannot be held in law that a person cannot ever be convicted of abetting a certain offence when the person alleged to have committed that offence in consequence of the abetment has been acquitted. It is further held that the question of the abettor's guilt would depend on the nature of the act abetted and the manner in which the abetment is made.::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 :::
revn.22.2014 judge.odt 27 It is only in the case of a person abetting an offence by intentionally aiding another to commit that offence that the charge of abetment against him would be expected to fail when the person alleged to have committed the offence is acquitted of that offence. The Apex Court has also noted that the offence of abetment is complete when the alleged abettor has instigated another or engaged with another in a conspiracy to commit the offence. It is not necessary for the offence of abetment that the act abetted must be committed. Reference can be usefully made to another decision of the Apex Court which has been pressed into service by learned A.P.P., in the case of Gallu Sah v. State of Bihar, AIR 1958 SC 813. Even in this decision in paras. 7 and 8, the Apex Court examined the purport of the offence of abetment. Referring to the Calcutta High Court decision in the case of Umadasi Dasi v. Emperor, AIR 1924 Cal.1031, the Apex Court noted that in the majority of cases the general rule that where a person is charged with having committed an offence and another is charged with having abetted him in the commission thereof, and the prosecution fails to substantiate the commission of the principal offence there can be no conviction for abetment, might hold good; but there are exceptions to the general rule, particularly when there is evidence which satisfactorily establishes that the offence abetted is committed and is committed in consequence of the abetment.
9. Before the lower Court reliance was placed by the Applicant on the decision of the High Court reported in (1999) Vol.101 (2) Bom. L.R.223 in the case of State of Maharashtra v. Ramdas Shankar Kurlekar and ors. In that case the charge against the principal accused was not proved, for which reason ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 28 the co-accused who was charged only as an abettor was also granted benefit. That decision is again on the facts of that case as the role of the co- accused was stated to be only one of accompanying P.W. 1 in the car to receive the amount.
10. In my opinion, the decisions pressed into service by the Counsel for the Applicant, are inapposite. In the first place, the question of granting benefit to the co-accused charged with abetment, relying on the circumstance of abatement of the criminal proceedings (trial) as against the principal accused, cannot be countenanced. This is so because, such benefit can be granted only when the principal accused was to be acquitted of the principal offence for which he has been charged. In the case of abatement of criminal proceedings, however, it is not termination of proceedings with a decision on merit with the assent of the Public Prosecutor. In other words, abatement of criminal proceedings does not result in acquittal of the concerned accused. The scheme of Section 394 of the Code makes it amply clear that abatement of Appeal against the deceased accused does not entail in ab-initio dissolution of the criminal action. For, the legal representatives are given option to contest the appeal in so far as sentence of fine is concerned. Similarly, it is well settled that the remedy of revision can be pursued inspite of death of the accused. Thus understood, the principle invoked by the Applicant to claim benefit, relying on the abovesaid decisions is unavailable. A priori, the Applicant can succeed only if the prosecution were to fail in discharging the initial burden to establish the charge against the accused. Even if the prosecution failed to discharge the initial burden to establish the charge as against the principal offence, even then it will be imperative to ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 29 demonstrate from the record that the prosecution case as against the applicant does not fall in the first or the second clause of Section 107 of I.P.C. and would only fall under the third clause thereof. No such argument was canvassed before the Lower Court or any serious attempt in that behalf has been made before this Court. The only document which is placed on record before this Court along with the impugned order, is the charge as framed against the accused by the Special Judge. That document cannot be the sole basis to consider the claim of the Applicant in this behalf. Be that as it may, all those questions will have to be addressed by the appropriate Court as and when occasion arises.
11. The learned Counsel for the Applicant would rely on the dictum of the Apex Court in the case of Bondada Gajapathi Rao v. State of Andhra Pradesh reported in AIR 1964 S.C. 1945. In para 9 of the said decision it is observed that in so far as personal punishment (other than a fine) is concerned that stands dissolved by the death of the offender and an appeal to get that punishment set aside becomes infructuous and abates. This decision is of no avail to the Applicant. In that case the Court was called upon to consider whether the revision petitions and some appeals from sentences of fine might be continued by the legal representatives on the death of the accused pending such proceeding. In other words, the abovesaid exposition in the said decision is in the context of the issue considered in that judgment. This position is amply clear from the observation in the same paragraph 9 of the decision a little earlier where it is stated as ".... it is not my purpose to consider, whether in the absence of any direct injury to the living every criminal proceeding must come to an end after the ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 30 death of the accused whether before this conviction or after ...."
Be that as it may, that decision is not an authority on the point in issue under consideration.
12. That takes me to the last submission canvassed on behalf of the Applicant. According to the Applicant, even if the Applicant is required to face the trial, the trial would be unjust and the Applicant will suffer grave prejudice due to the absence of the co- accused (accused No. 1) who was primarily required to satisfactorily account of pecuniary resources or property disproportionate to his known sources of income, being a public servant. Indeed, Section 13(1)(e) is an offence which is committed by a public servant. A public servant is said to have committed the offence of criminal misconduct, if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. That, however, does not mean that persons other than the public servant cannot be tried for the offence under the Act along with the principal offender, who is a public servant. The Apex Court in the case of P. Nallammal v. State, reported in AIR 1999 SC 2556 and in State of UP. v. Udai Narayan reported in 1999 (8) SCC 741 has held that a person who is not a public servant can be prosecuted under the provisions of the Act. In so far as the rule of evidence to establish offence under Section 13(1)(e), the same is no more res integra. Burden is very limited on the prosecution. It is sufficient for the prosecution to show that the accused is a public servant; the nature, and the extent of the pecuniary resources or property which were ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 31 found in his possession or any person on his behalf, what were his known sources of income (known to the prosecution); that such resources or property found in possession were disproportionate to his known sources of income. The burden then shifts on the public servant to satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. If the public servant fails to do so, the legal presumption against such Government servant would operate, resulting in recording a finding of guilt and conviction. A priori, merely because the principal accused is not available for trial, that would not enure to the benefit of the co-accused named as abettor under Section 109 of the I.P.C. The test to consider this argument, as is rightly contended by the learned P.P., is, in a given case where the principal accused is available for trial and allows the matter to go by default or for that matter fails to satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income, the co-accused named with charge of abetment under Section 109 will be bound by such finding against the principal accused.
Thus understood, the presence or absence of the principal accused for the trial cannot be the basis to proceed or not to proceed against the co- accused charged of abetment under Section 109 of I.P.C. Such co-accused will have to stand the trial on his own. If he so desires, it is open to him to produce evidence to satisfactorily account of pecuniary resources or property disproportionate to the known sources of the principal accused. In the present case, the co-accused is none other than the wife of the principal accused. The prosecution claims that the real owner of the resources or property in the name of the Applicant was the Accused No. 1 who was the ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 32 public servant. Even otherwise, the trial ought to proceed against the Applicant herein in accordance with law and as rightly observed by the Special Judge after recording of evidence and hearing the parties the final conclusion on the relevant aspects can be arrived at the stage of judgment."
20 The Co-ordinate Bench has considered the decision of the Bombay High Court in the case of State of Maharashtra .v/s. Ramdas Kurlekar (supra) and the decision of the Hon'ble Apex Court in the case of CBI .v/s. V. C. Shukla (supra). The Co- ordinate Bench held that presence or absence of the principal accused for the trial in such an offence cannot be the basis to proceed or not to proceed against co-accused charged of abetment under Section 109 of the I.P.C. It is held that such co-accused will have to stand the trial on his own. It is held that the offence under Section 109 read with Section 13 (1)(e) read with section 13 (2) of the P.C. Act is separate distinct and substantive offence. It is held that on the abatement of the proceedings against the principal accused, who happened to be Government Servant, in such a case the proceeding against the co-accused cannot be terminated. ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 :::
revn.22.2014 judge.odt 33 21 The Hon'ble Apex Court in the recent decision in the case of State of Tamil Nadu .v/s. Nirmala ATC, reported in, 2018 ALL MR Cri. 440 has categorically held that death of main accused does not result in abatement of trial. In the case before the Apex Court the charge-sheet was filed against the public servant and non public servant under the provisions of the prevention of corruption Act and Section 109 of the I.P.C. The main accused, the public servant, died during the pendency of the revision application before the High Court, raising a challenge to the order of discharge of the accused. The High Court dismissed the revision application on the ground that the death of the main accused has resulted in abatement of the trial and nothing remained to be considered. The Hon'ble Apex Court held in this case that the death of the main accused does not result in abatement of trial against the co-accused, who have been roped in by invoking Section 109 of the I.P.C. 22 In the above context it would be necessary to consider the two decisions of the Hon'ble Apex Court. In these decisions the nature of the offence of abetment defined under I.P.C. as and ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 34 when invoked with the offences under the P.C. Act has been considered. These two decisions are in the case of P. Nallammal (supra) and Jamuna Singh (supra). Para No. 10 of the decision in the case of P. Nallammal (supra) is relevant. It is extracted below.
"10. Thus, clause (b) of the sub-section encompasses the offences committed in conspiracy with others or by abetment of "any of the offences"
punishable under the P.C. Act. If such conspiracy or abetment of "any of the offences" punishable under the P.C. Act can be tried "only" by the Special Judge, it is inconceivable that the abettor or the conspirator can be delinked from the delinquent public servant for the purpose of trial of the offence. If a non- public servant is also a member of the criminal conspiracy for a public servant to commit any offence under the P.C. Act, or if such non-public servant has abetted any of the offences which the public servant commits, such non-public servant is also liable to be tried along with the public servant before the court of a Special Judge having jurisdiction in the matter." The para 6 of the decision in the case of Jamuna Singh (supra) would be relevant. It is extracted below.
"6. It cannot be held in law that a person cannot ever be convicted of abetting a certain offence when the person alleged to have committed that offence in consequence of the abetment has been acquitted. The question of the abettor's guilt depends on the nature of the act abetted and the manner in which the ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 35 abetment was made. Under s. 107 I.P.C. a person abets the doing of an act in either of three ways which can be: instigating any person to do an act; or engaging with one or more person in any conspiracy for the doing of that act; or intentionally aiding the doing of that act. If a person instigates another or engages with another in a conspiracy for the doing of an act which is an offence, he abets such an offence and would be guilty of abetment under s. 115 or s. 116 I.P.C., even if the offence abetted is not committed in consequence of the abetment. The offence of abetment is complete when the alleged abettor has instigated another or engaged with an other in a conspiracy to commit the offence. It is not necessary for the offence of abetment that the act abetted must be committed. This is clear from Explanation 2 and illustration (a) thereto, to s. 108 I.P.C."
23 The law laid down in the above decisions of the Hon'ble Apex Court has to be followed while deciding the question of the nature, involved in this case before me. It is therefore crystal clear that the offence under Section 109 of the I.P.C. is separate, distinct and substantive offence. The offence gets attracted if any of the requirements of Section 107 of the I.P.C. is satisfied. In my view, if this settled position is applied to the facts of the case on hand, then the offences alleged to have been committed by the accused would squarely fall within the ambit of definition of the ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 36 abetment under Section 107 of the I.P.C. It is to be noted that the case of the prosecution is that they abetted the offence committed by the Government Servant of the accumulation of the assets disproportionate to the known sources of the income of the Government servant. The properties standing in the name of the accused Nos. 1 and 2 have been specifically listed in the charge- sheet. The enormity of the offence committed in this case can be seen on the basis of the evidence collected by the investigating officer with regard to the properties purchased by the deceased Government Servant during his service tenure. According to the prosecution, accused No. 1 and 2 abated the commission of the offence by the Government Servant defined under Section 13 (1)(e) read with Section 13 (2) of the P.C. Act. In this case, the principal offence against the accused is under Section 109 of the I.P.C. read with the offences under Section 13 (1)(e) read with section 13 (2) of the P.C. Act. The basic contention of the accused is that after the death of the Government Servant they would not be in a position to effectively and meaningfully meet the case of the prosecution. According to them, their prosecution in the absence of the ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 37 Government Servant would cause prejudice to them. It is to be noted that the Co-ordinate Bench of the Bombay High Court in the case of Maushami Batabyal (supra) has dealt with this aspect in para No.12. In my view the observations made by the Co-ordinate Bench in para 12 of the decision would take care of this grievance as well.
24 The settled legal position is therefore that the offence against the non Government Servant under Section 109 read with Section 13 (1)(e) read with section 13 (2) of the P.C. Act is separate distinct and substantive offence. The offence under Section 109 of the I.P.C. being separate distinct and substantive offence and the LR's being in possession of the ill-gotten property, the commission of the offence would not get wiped out. They would be required to face the trial. The prosecution can prove the charge against them by adducing the evidence. It is to be noted that simply because of the death of the Government Servant pending the prosecution the prosecution cannot be said to be handicapped in adducing the evidence of accumulation of the assets disproportionate to the ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 38 known sources of income of the public servant. The prosecution can lead the evidence and prove it. On the basis of such evidence, the charge against the accused Nos.1 and 2 would be required to be considered. To prove the basic fact of accumulation of the property, dis-proportionate to the known sources of the income of the Government Servant, would be the duty of the prosecution. The prosecution cannot be denied the opportunity to prove it. In order to prove the charge against accused No. 1 and 2 of abetment, the prosecution can lead the evidence of accumulation of assets disproportionate to the known sources of the income of the deceased public servant. In my view, therefore, the learned APP is right in submitting that the decision in the case of Prakash Ambagade (supra) has been rendered without considering the above stated legal position and as such per incuriam. On appreciation of the submissions and on consideration of the law laid down as stated above, it prima facie appears that the decision in the case of Prakash Ambagade (supra) has been rendered without considering the above stated legal position. With due respect, I conclude that the decision in the case of Prakash Ambagade (supra) ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 39 does not lay down the law consistent with the judicial pronouncements of the Hon'ble Apex Court and the previous decisions of the Bombay High Court and as such per incuriam. Therefore, on this point, I am not inclined to accept the submissions advanced by the learned Advocate for the accused. 25 The next important issue is with regard to the jurisdiction of the Special Court. The identical issue fell for consideration before the Co-ordinate Bench of Bombay High Court. In the case of High Court on its own Motion .vs/. State of Maharashtra, the Co-ordinate Bench has considered the decision in the case of Jitendra Kumar (supra) and the decision in the case of Nirmala ATC (supra). The Co-ordinate Bench has held that the offences specified in clause (a) of Section 3(1) of the P.C. Act can be provided in Chapter III of the P.C. Act namely the offence under Sections 7, 8, 9, 10, 11, 12 and 13. It is held that Section 3 (1) would include the offence punishable under the P.C. Act, the conspiracy to commit the offence under the P.C. Act, attempt to commit the offence under the P.C. Act and the abetment of any ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 40 offence under the P.C. Act. It is held that therefor if the offences alleged to have been committed are within the scope and ambit of Section 3(1) of the P.C. Act then the special Court constituted under Section 4 of the P.C. Act, would have exclusive jurisdiction to try the said offences even against the non public servant. Learned Co-ordinate Bench has reproduced the relevant observations from para 30 of the decision in the case of Jitendra Singh (Supra). The same can be profitably extracted for the purpose of understanding the question in proper prospective. It reads thus:
"30. Thus, the scheme of the PC Act makes it quite clear that even a private person who is involved in an offence mentioned in Section 3(1) of the PC Act, is required to be tried only by a Special Judge, and by no other Court. Moreover, it is not necessary that in every offence under the PC Act, a public servant must necessarily be an accused. In other words, the existence of a public servant for facing the trial before the Special Court is not a must and even in his absence, private persons can be tried for PC as well as non-PC offences, depending upon the facts of the case. We, therefore, make it clear that it is not the law that only along with the junction of a public servant in array of parties, can the Special Judge can proceed against private persons who have committed offences punishable under the PC Act."::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 :::
revn.22.2014 judge.odt 41 26 In my view, therefore, the submission advanced by the learned Advocate for the applicant relying upon the decision in the case of Jitendra Singh (supra) cannot be sustained. 27 The Hon'ble Apex Court in the case of HCL Infosystem (supra) held that the special Court has jurisdiction to try all P. C. Act offences and/or even non-P.C. Act offences allegedly committed by a person other than a public servant. It is held that in case of death of sole accused-public servant, the jurisdiction of the special court is not affected. The special Judge can of course try non P.C. Act cases alone against the non-public servant. In the case of P. Nallamal (supra) on the point of jurisdiction it is held that clause (b) of Section 3(1) encompasses the offences committed in conspiracy with others by abetment of "any of the offences" punishable under the P.C. Act. If such conspiracy or abetment of the "any of the offences" punishable under the P.C. Act can be tried "only" by a Special Judge, it is inconceivable that the abettor or the conspirator can be delinked from the delinquent public servant for the purpose of the trial of the offence. If a non-public servant is also a member ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 42 of the criminal conspiracy for a public servant to commit any offence under the P.C. Act, or if such non-public servant has abetted any of the offences which the public servant commits, such non- public servant is also liable to be tried along with the public servant before the Court of a Special Judge having jurisdiction in the matter. In my view, therefore, the submission advanced by the learned Advocate for the accused Nos. 1 and 2 that special Judge will have no jurisdiction to try the offence against accused Nos. 1 and 2 cannot be accepted. The submission runs counter to the settled legal position. The offences committed by accused Nos. 1 and 2, as per the prosecution, are fully covered within the ambit of Section 3(1) of the P.C. Act. According to the prosecution, they have abetted the commission of an offences under the P.C. Act by the Government Servant. Therefore, in this case, the special Court alone will have a jurisdiction to try the case against the accused Nos.1 and 2. Therefore, on this count also the submission advanced by the learned Advocate for the accused Nos. 1 and 2 cannot be accepted.
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revn.22.2014 judge.odt 43 28 This would now take me to the third point namely the scope of inquiry while deciding the discharge application or framing of a charge. In the context of the above factual position it would be profitable to make useful reference to the decision of the Hon'ble Supreme Court in the cases of Tarun Jit Tejpal Vs. State of Goa and Another5; Niranjan Singh Karam Singh Punjabi, Advocate Vs. Jitendra Bhimraj Bijjaya and Others6 and Sajjan Kumar Vs. Central Bureau of Investigation7, wherein it has been held that appreciation of evidence at the time of framing of the charge or while considering discharge application, is not permissible. The Court is not permitted to analyze all the material touching the pros and cons, reliability and acceptability of the evidence. In the case of Tarun Jit Tejpal (supra), it is held that at the time of consideration of the application for discharge, the Court cannot act as a mouth piece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is held that at the stage of consideration of application for discharge, the Court has to proceed with an 5 (2020) 17 SCC 556 6 (1990) 4 SCC 76 7 (2010) 9 SCC 368 ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 44 assumption that the materials brought on record by prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offences. At this stage, the Court is not expected to go deep into the matter and hold that materials would not warrant a conviction. It is held that what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting accused has been made out. It is further held that the law does not permit a mini trial at the stage of deciding the discharge application or at the time of framing of charge.
29 In order to consider the applicability of the above settled legal position to the facts of the case, I have gone through the record and proceedings. During the course of investigation the evidence was collected against the principal accused as well as the accused Nos. 1 and 2. The same has been compiled in the charge- sheet. According to the prosecution, the accused Nos. 1 and 2 have ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 ::: revn.22.2014 judge.odt 45 abetted the offence of accumulation of the assets of Rs.49,08,291/- (Rs. Fourty Nine Lacs Eight Thousand Two Hundred and Ninety One only) disproportionate to the known sources of income of the Government Servant. It is further pertinent to note that in the charge-sheet the list of the properties possessed by the accused Nos. 1 and 2 has been provided. During the course of the investigation they were offered an opportunity to explain their stand. They have explained their stand. Similar opportunity was granted to the Government Servant. He had also explained his stand before his demise.
30 In the facts and circumstances, I am of the view that this is not a fit case to discharge the accused Nos.1 and 2. They are possessing the property and the assets acquired by ill-gotten means by the deceased Government Servant. The material on record prima facie indicates that they are liable to be prosecuted by invoking Section 109 of the I.P.C. read with Section 13 (1)(e) read with section 13 (2) of the P.C. Act.
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revn.22.2014 judge.odt 46 31 In the fact and circumstances I do not find any substance in the revision application. The learned Special Judge has taken all the facts and circumstances into consideration. The order passed by the special judge does not warrant interference. The revision is devoid of merits. It is accordingly dismissed. 32 Considering the fact that the prosecution is pending since 2011, the learned Judge is requested to dispose of the case expeditiously and in any case within the period of six months from the date of receipt of this order. It is made clear that the observations made in this judgment are for the purpose of deciding this application and therefore, the trial Court, at the time of deciding the case on merits, shall not get influenced by the same, in any manner.
33 The criminal revision application stands disposed of.
(G. A. SANAP, J.) Namrata ::: Uploaded on - 06/06/2023 ::: Downloaded on - 08/06/2023 00:15:16 :::