Gujarat High Court
Kalavati Hasmukhrai Mehta vs State Of Gujarat & on 5 May, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/19779/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE
FIR/ORDER) NO. 19779 of 2015
With
CRIMINAL MISC.APPLICATION NO. 19775 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of India NO or any order made thereunder ?
========================================================== KALAVATI HASMUKHRAI MEHTA....Applicant(s) Versus STATE OF GUJARAT & 1....Respondent(s) ========================================================== Appearance:
MR ZUBIN F BHARDA, ADVOCATE for the Applicant(s) No. 1 MR RC KODEKAR, ADVOCATE for the Respondent(s) No. 2 MS SHRUTI PATHAK, APP for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 05/05/2017 Page 1 of 29 HC-NIC Page 1 of 29 Created On Sat May 06 01:26:52 IST 2017 R/CR.MA/19779/2015 CAV JUDGMENT CAV COMMON JUDGMENT 1 Since the issues involved in both the captioned applications are the same and the challenge is also to the selfsame criminal proceedings, those were heard analogously and are being disposed of by this common judgment and order.
2 By these two applications under Section 482 of the Code of Criminal Procedure, 1973, the applicants - original accused persons have prayed for the following reliefs:
"5A. That this Hon'ble Court may be pleased to admit and allow this petition.
B. That this Honourable Court be pleased to quash the proceedings of Special Case No.CBISPCC/59/2010 pending in the Court of Special Judge, CBI Court, Mirzapur, Ahmedabad, on the basis of the chargesheet filed under section 109 of the Indian Penal Code, pursuant to the second complaint bearing No.RC 06(A)/09 with CBI, ACB, Gandhinagar, after the prosecution pursuant to the first complaint bearing RC EOU12008E 001, which was registered under Section 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988 read with Sections 467, 420, 471 and 120(B) of the Indian Penal Code came to be dropped against the accused no.1 who happens to be the son of the petitioner.
C. That this Hon'ble Court be pleased to direct the CBI to obtain the documents to the assets and income and Fix Deposits of the petitioner which are at present in the custody of the Trial Court and return them back to the petitioner along with other documents which are lying in the custody of the CBI which have not been submitted before the Trial Court. This Hon'ble Court may also be pleased to order to defreezing of the back accounts. Demat accounts and share trading accounts of the petitioner in the interests of justice.
D. Pending admission and or final disposal of this petition this Honourable Court be pleased to stay of the further proceedings of Special Case No.CBISPCC/59/2010 pending in the Court of Special Judge, CBI Court, Mirzapur, Ahmedabad.Page 2 of 29
HC-NIC Page 2 of 29 Created On Sat May 06 01:26:52 IST 2017 R/CR.MA/19779/2015 CAV JUDGMENT E. That this Hon'ble Court be pleased to grant such other and further relief as may be deemed fit and proper in the facts and circumstances of the case.
F. That this Hon'ble Court be pleased to award cost of this petition."
3 It appears from the materials on record that the C.B.I. received an information that one Shri Hitesh H. Mehta, serving as a Inspector of Central Excise and Customs, Vapi Commissionerate, District: Valsad had amassed assets disproportionate to his known source of income. Shri Mehta is alleged to have amassed assets disproportionate to his known source of income during the period between 1st January 2002 and 21st August 2008. During the search conducted by the C.B.I., in connection with the investigation of one another case bearing No.RC EOW12008 E001 at New Delhi, many incriminating documents with regard to the investment in assets both movable and immovable by Shri Mehta were recovered.
4 The applicant of the Criminal Miscellaneous Application No.19779 of 2015 is the mother of Shri Mehta and the applicant of the connected application is the estranged wife of Shri Mehta.
5 The C.B.I. lodged the First Information Report in this regard for the offence punishable under Sections 13(1)(e) read with 13(2) of the Prevention of Corruption Act, 1988 and Section 109 of the Indian Penal Code. The First Information Report lodged by the C.B.I., ultimately, culminated in filing of the chargesheet in the Court of the learned Special Judge, C.B.I. Court No.4, Mirzapur at Ahmedabad. The filing of the chargesheet culminated in the Special C.B.I. Case No.59 of 2010. The allegations against Smt. Mita H. Mehta alias Smt. Mita G. Raval, wife of the main accused i.e. the public servant is as under:
Page 3 of 29HC-NIC Page 3 of 29 Created On Sat May 06 01:26:52 IST 2017 R/CR.MA/19779/2015 CAV JUDGMENT "That Smt Mita H. Mehta @ Smt. Mita G. Raval filed income tax returns showing income from various sources like tuitions, beauty parlour work, share trading and job in private sector, Shri Rizwan R. Sheikh of R.R. Consultancy, Valsad was examined. He proved that Smt. Mita G. Raval in fact did not work at R.R. Consultancy and that Shri Rizwan had given that certificate on request of Shri Hitesh H. Mehta. The said certificate was used by Shri Hitesh H. Mehta and Smt. Mita H. Mehta @ smt. Mita G. Raval to show false income while filing income tax returns. Further Shir Bhupendra Chevli of Green line Architects firm was examined. During his examination he stated that he knew Shri Hitesh H. Mehta and that Hitesh had requested his for a salary certificate, in the name of his wife Smt. Mita H. Mehta in order to get some housing loan, however two salary certificate amounting to Rs.1,20,000/ each for the year 205006 and 200607 were given to Shri Hitesh H. Mehta in the name of Smt. Mita H. Mehta, it is established that Smt. Mita G. Raval had shown false income by procuring false salary certificate from private firms with the help of Shri Hitesh H. Mehta. It clearly proves that she actively abetted Shri Hitesh H. Mehta in his offence. Hence, assets, income and expenditure of smt. Mita H. Mehta @ Smt. Mita G. Raval has also to be taken into consideration as the above details, cannot be separated from the assets, income and expenditure of Shri Hitesh H. Mehta."
6 So far as the mother of Shri Mehta is concerned, the charge is as under:
"That, Smt. Kalavati H. Mehta, mother of the accused is residing with her younger son Shri Rashesh H. Mehta. It is revealed that Smt. Kalavati H. Mehta had purchased a land admeasuring 2.04 heactares in Survey No.500 at Khajuradi village in 2003. During investigation Shri Mahendrabhai Patel, Talati cum Mantri of village Khajuradi, District Valsad was examined. He stated from the land records that no crop was Page 4 of 29 HC-NIC Page 4 of 29 Created On Sat May 06 01:26:52 IST 2017 R/CR.MA/19779/2015 CAV JUDGMENT growth on the above said land except for few plantations of mango trees. Shri Hitesh H. Mehta and Smt. Kalavati H. Mehta themselves had accepted that Shri Hitesh was looking after the agricultural work in the above said land. Thus, it proves that Shri Hitesh H. Mehta was looking after the agricultural work of the agricultural land in the name of his mother Smt. Kalavati. H. Mehta, Shri Nilesh Ajagia, a share broker agent was examined, he stated that he was the share broker agent of Shri Hitesh H. Mehta. He stated that he was doing share transactions as per the instructions of Shri Hitesh H. Mehta in three accounts maintained by him in the names of Smt. Kalavati H. Mehta, Smt. Mita G. Raval and Shri Rashesh H. Mehta, Smt. Kalavati H. Mehta is receiving family pension with respect to her husband late Shri Hasmukhrai Mehta apart from the above mentioned income from agricultural land and share transactions. Shri Hitesh H. Mehta was handling the share transactions and agricultural land transactions on behalf of his mother Smt. Kalavati H. Mehta. Further, bank documents of Smt. Kalavati were recovered from the house of Smt. Mita where Shri Hitesh Mehta is also residing Scrutiny of the Income Tax returns filed by Smt. Kalavati also revealed that she had shown expenditure for items like expenditure for education of son of the accused and purchase of LCD TV which was found during the search of the house of the accused Shri Hitesh Mehta at flat No.302, Kamal Residency, Valsad which is in the name of Smt. Mita Mehta. Hence, assets, income and expenditure of Smt. Kalavati H. Mehta also cannot be separated from the assets, income and expenditure of Smt. Shri Hitesh H. Mehta."
7 It is the case of both the applicants that they are no way concerned with the crime alleged to have been committed by the main accused. According to the applicants, they should not be prosecuted for the offence punishable under Section 109 of the Indian Penal Code i.e. abetting the commission of the offence alleged to have been committed by the public servant under Sections 13(1)(e) read with 13(2) of the Page 5 of 29 HC-NIC Page 5 of 29 Created On Sat May 06 01:26:52 IST 2017 R/CR.MA/19779/2015 CAV JUDGMENT Prevention of Corruption Act, 1988.
8 Mr. Bharda, the learned counsel appearing for the two applicants has putforward three contentions.
9 The principal argument of Mr. Bharda is that the two applicants being the mother and wife respectively of the main accused i.e. the public servant, cannot be prosecuted for the offence of abetment. To put it in other words, the contention is that the offence punishable under Section 13(1)(e) cannot be abetted by another person.
10 The second contention raised is that the C.B.I. could not have meddled into the affairs of the Income Tax Department. To put it in other words, the Income Tax Act is a special statute providing any inquiry, investigation, prosecution, trial, etc, and unless and until the authorities under the Income Tax Act do not take the orders of assessment in review, the same could not have been questioned by the C.B.I. 11 The third contention is that there is no material on record to put the two applicants on trial for the offence punishable under Section 109 of the Indian Penal Code.
12 Mr. Bharda seeks to rely upon a decision of the Supreme Court in the case of C.B.I. vs. State of Rajasthan reported in 1996 (9) SCC 735.
13 In such circumstances referred to above, Mr. Bharda prays that there being merit in both the applications, those be allowed and the prosecution be quashed against the two applicants.
Page 6 of 29HC-NIC Page 6 of 29 Created On Sat May 06 01:26:52 IST 2017 R/CR.MA/19779/2015 CAV JUDGMENT 14 On the other hand, both the applications have been vehemently opposed by Mr. Kodekar, the learned counsel appearing for the C.B.I. According to Mr. Kodekar, more than a prima facie case could be said to have been made out to put both the applicants on trial for having abetted the offence punishable under Section 13(1)(e) of the Act, 1988.
15 Mr. Kodekar seeks to rely upon the following averments made in the affidavitinreply filed in the Criminal Miscellaneous Application No.19779 of 2015:
"4 That the Case RC 6/2009GNR, was registered on the basis of source information against Shri Hitesh H. Mehta, Inspector, Central Excise & Customs, Vapi Commissionerate, Valsad, Gujarat for the allegation that he was found in possession of assets in his own name and in the name of his family members which are disproportionate to their known sources of income.
5 After completion of investigation CBI filed chargesheet against Shri Hitesh H. Mehta, Inspector of Central Excise, Division II, Silvasa, Ms. Mita Hitesh Mehta @ Mita G. Raval, the then wife of Shri Hitesh H. Mehta and applicant accused Smt. Kalavati H. Mehta, mother of Shri Hitesh H. Mehta for the offences punishable under sections 109 of IPC, 13(2) r/w 13(1)(e) of Prevention of Corruption Act, 1988 as he was found in possession of disproportionate assets to the tune of Rs.41,47,962.08/ against his total income during the check period.
6 That the averment made in para 1 is the matter on record and to state that CBI filed chargesheet against Shri Hitesh H. Mehta, Inspector of Central Excise, Division II, Silvasa and Ms. Mita Hitesh Miehta @ Mita G. Raval, the then wife of Shri Hitesh H. Mehta and the applicant accused Smt. Kalavati H. Mehta, mother of shri Hitesh H Mehta.
7 That there is documentary as well as oral evidence to show that Smt. Kalavati H. Mehta purchased agricultural land at Khajuradi Valsad for amount of Rs.2,00,001/ and had constructed a house at the cost of Rs.80,000/ whereas she did not have any amount in her pension account nor she satisfactorily explained the source of income by which she had purchased the agricultural land.
8 That it is evidence on record that there were around Rs.68,000/ as closing balances as on 21.08.2008 in various SB accounts in the name of Page 7 of 29 HC-NIC Page 7 of 29 Created On Sat May 06 01:26:52 IST 2017 R/CR.MA/19779/2015 CAV JUDGMENT applicant accused Smt. Kalavati H. Mehta maintained with various banks and investment around Rs.2,14,000/ in Mutual Funds, FDRs, etc. as on 21.08.2008. Further, she had invested Rs.30,63,566/ in different shares through subbroker of Standard Chartered. However, she had not satisfactorily explained the source for this amount. Hence, on the basis of aforesaid evidence on record the chargesheet was filed against applicant accused for abetment of accused No.1 Shri Hitesh H. Mehta, her son.
12 That the averment made in paras 2.3 and 2.4 are the matter on record and to state that petitioner's son was not charge sheeted in the Court in case registered as RCEOU12008E001 of CBI, New Delhi whereas he was charge sheeted in another case registered by CBI, ACB, Gandhinagar and is pending before the Ld. CBI Special Court at Mirzapur, Ahmedabad.
13 That the departmental inquiry as mentioned by the applicant accused was conducted against Shri Hitesh H. Mehta, her son in the case of misconduct and misbehaviour while he was working as Inspector in Central Excise at RangeIV, South Daman Division, Daman Commissionerate in different matter and the charges were not proved whereas the instant case was registered for possession of disproportionate asset from his known source of income.
14 That CBI, ACB, Gandhinagar filed chargesheet against Shri Hitesh H. Mehta, Inspector of Central Excise, Division II, Silvasa, Ms. Mita Hitesh Mehta @ Mita G. Raval, the then wife of Shri Hitesh H. Mehta and the petitioner Smt. Kalavati H. Mehta on the basis of evidences in the form of documentary and oral collected during the course of investigation.
15 That the averment made in para 3(A) to 3(D) of grounds are the matter on record and to state that the instant case was registered CBI, ACB, Gandhinagar on the basis of source information against the accused Shri Hitesh H. Mehta, Inspector, Central Excise, DivisionII, Silvasa. It is the fact on the record that the documents seized during the searches carried out in connection with case RCEOU12008E001 New Delhi was transferred to CBI, Gandhinagar and the instant case was registered.
16 That it was revealed from the incriminating documents collected during searches carried out in CBI Case RC.EOU2008E001 New Delhi and collected during investigation of instant case that accused Shri Hitesh H. Mehta, Inspector, Central Excise, DivisionII, Silvasa was found in possession of assets to the tune of Rs.41,57,265/ in the name of his own name and in the name of his family members including the applicant accused, which were highly disproportionate to his known source of income during the check period from 01.01.2002 to 21.08.2008.
17 That accordingly chargesheet was filed Shri Hitesh H. Mehta, Page 8 of 29 HC-NIC Page 8 of 29 Created On Sat May 06 01:26:52 IST 2017 R/CR.MA/19779/2015 CAV JUDGMENT Inspector of Central Excise, Division II, Silvasa after thorough investigation including Ms. Mita Hitesh Mehta @ Mita G. Raval, the then wife of Shri Hitesh H. Mehta and the applicant accused Smt. Kalavati H. Mehta, mother of Shri Hitesh H. Mehta in the court of law as they aided and abated the accused Shri Hitesh H. Mehta."
16 In the same manner, Mr. Kodekar seeks to rely upon the following averments made in the affidavitinreply filed by the C.B.I. in the connected application being the Criminal Miscellaneous Application No.19775 of 2015:
"4 That the Case RC 6/2009GNR, was registered on the basis of source information against Shri Hitesh H. Mehta, Inspector, Central Excise & Customs, Vapi Commissionerate, Valsad, Gujarat for the allegation that he was found in possession of assets in his own name and in the name of his family members which are disproportionate to their known sources of income.
5 After completion of investigation CBI filed chargesheet against Shri Hitesh H. Mehta, Inspector of Central Excise, Division II, Silvasa, Ms. Mita Hitesh Mehta @ Mita G. Raval, the then wife of Shri Hitesh H. Mehta and applicant accused Smt. Kalavati H. Mehta, mother of Shri Hitesh H. Mehta for the offences punishable under sections 109 of IPC, 13(2) r/w 13(1)(e) of Prevention of Corruption Act, 1988 as he was found in possession of disproportionate assets to the tune of Rs.41,47,962.08/ against his total income during the check period.
6 That the averment made in para 1 is the matter on record and to state that CBI filed chargesheet against Shri Hitesh H. Mehta, Inspector of Central Excise, Division II, Silvasa and applicant accused Ms. Mita Hitesh Mehta @ Mita G. Raval and Smt. Kalavati H. Mehta, mother of Shri Hitesh H. Mehta.
7 That it is evidence on record to prove that Smt. Mita Hitesh Mehta @ Mita G. Raval and Shri Hitesh H. Merhta were living together and there was no dispute between them. However, Shri Hitesh H. Mehta had given divorce to Smt. Mita Hitesh Mehta @ Mita G. Raval on 21.01.2006 only on paper for the reason of purchase of property in the name of Smt. Mita H. Mehta @ Mita G. Raval. They had not separated the bank accounts and she didn't have any kind of permanent job or income. Further, she did not demand any compensation at the time of divorce from Shri Hitesh H. Mehta.
8 That she had shown false income by procuring false salary Page 9 of 29 HC-NIC Page 9 of 29 Created On Sat May 06 01:26:52 IST 2017 R/CR.MA/19779/2015 CAV JUDGMENT certificate from private firms with the help of Shri Hitesh H. Mehta and hence, the assets, income and expenditure of Smt. Mita Mehta cannot be separated from the assets, income and expenditure of Shri Hitesh H. Mehta.
9 That it is evidence on record documentary as well as oral to prove that shop No.16 at Shivam Campus was purchased on 24.07.2002 in the name of Smt. Mita G. Raval at the cost of Rs.1,45,858/. Another flat No.301, Kamal Residency, Valsad was purchased on 21.09.2005 by Smt. Mita H. Mehta @ Smt. Mita G. Raval at the cost of Rs.5,20,750/ against which she took loan of Rs.4,50,000/.
10 That it is evidence on record, documentary as well as oral to prove that applicant accused Smt. Mita Hitesh Mehta @ Mita G. Raval had invested around Rs.1,00,000/ in PPF, Mutual Fund, etc. Further the closing balances in her SB Accounts, as on 21.08.2008, was Rs.49,000/ and Rs.35,300/ was invested in share market. All these investments were made during that period when she was not having any source of income. Hence, on the basis of aforesaid evidence on record, the chargesheet was filed against applicant accused for abetment of accused No.1 Shri Hitesh H. Mehta, her husband.
14 That the averment made in paras 2.3 and 2.4 are the matter on record and to state that petitioner's husband was charge sheeted in case registered by CBI, ACB, Gandhinagar and is pending before the Ld. CBI, Special Court at Mirzapur, Ahmedabad but he was not charge sheeted in the case registered as RCEOU12008E001 of CBI, New Delhi.
15 That the departmental inquiry as mentioned by the applicant accused was conduced against Shri Hitesh H. Mehta, her husband in the case of misconduct and misbehaviour while he was working as Inspector in Central Excise at RangeIV, South Daman Division, Daman Commissionerate in different matter and th charges were not proved whereas the instant case was registered for possession of assets disproportionate to his known source of income.
16 That CBI, ACB, Gandhinagar filed chargesheet against Shri Hitesh H. Mehta, Inspector of Central Excise, Division II, Silvasa, applicant accused Ms. Mita Hitesh Mehta @ Mita G. Raval, and Smt. Kalavati H. Mehta on the basis of evidences in the form of documentary and oral collected during the course of investigation.
17 That the averment made in para 3(A) to 3(D) of grounds are the matter on record and to state that the instant case was registered CBI, ACB, Gandhinagar on the basis of source information against the accused Shri Hitesh H. Mehta, Inspector, Central Excise, DivisionII, Silvasa. It is the fact on the record that the documents seized during the searches Page 10 of 29 HC-NIC Page 10 of 29 Created On Sat May 06 01:26:52 IST 2017 R/CR.MA/19779/2015 CAV JUDGMENT carried out in connection with case RCEOU12008E001 New Delhi were transferred to CBI, Gandhinagar and the instant case was registered.
18 That it was revealed from the incriminating documents collected during searches carried out in CBI Case RC.EOU2008E001 New Delhi and collected during investigation of instant case that accused Shri Hitesh H. Mehta, Inspector, Central Excise, DivisionII, Silvasa was found in possession of assets to the tune of Rs.41,57,265/ in the name of his own name and in the name of his family members including the petitioner, which were highly disproportionate to his known source of income during the check period from 01.01.2002 to 21.08.2008."
17 According to Mr. Kodekar, there being no merit in both the applications, the same be rejected.
18 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the prosecution against the two applicants instituted by the C.B.I. should be quashed.
19 Let me deal with the principal argument of Mr. Bharda as regards abetment.
20 It is not in dispute that the properties standing in the names of the mother and wife of the public servant are the subjectmatter of scrutiny and the final report before the C.B.I. Court. While the prosecution wants to establish that those properties were, in fact, purchased by the public servant with his funds, the case of the two applicants herein is that the properties really belong to them in their own way and absolutely and the public servant had no role to play in such transaction.
21 In this backdrop of the facts, it is necessary to trace the law relating to corruption. For the first time, the law relating to corruption Page 11 of 29 HC-NIC Page 11 of 29 Created On Sat May 06 01:26:52 IST 2017 R/CR.MA/19779/2015 CAV JUDGMENT was codified in the year 1947 and it came to be called as the Prevention of Corruption Act, 1947. When the Act was enacted in the year 1947, possession of the assets by a public servant was not by itself an offence but was made as a rule of evidence against the public servant facing charges under Section 5(1)(a) to (d). The rule of evidence, as referred to above, was contained in Subsection (3) of Section 5 of the original Act. In the year 1964, the Act underwent an amendment and the rule of evidence as provided for under Subsection (3) of Section 5 of the original Act, was deleted and a new clause namely clause (e) was added to Section 5(1) of the original Act. Clause (e) thus introduced made possession of assets by public servant disproportionate to his known source of income, unless satisfactorily explained by him, an offence. When the original Act of 1947 was repealed and a new Act namely the Prevention of Corruption Act, 1988, was brought in, the law on this subject underwent many substantial changes and old Section 5(1)(e) now stands as Section 13(1)(e) of the present Act. The registration of the crime and the framing of the charge against all the accused in this case is under the Prevention of Corruption Act, 1988.
22 It could be seen from the introduction of the 1988 Act that the 1947 Act had some inadequacies which has necessitated the bringing about of the 1988 Act. From the statement of Objects and Reasons to this Act, the circumstances which lead to the bringing of the new Act appear to be that the Legislature intended to make the existing anti corruption laws more effective by widening their coverage and by strengthening the provisions. The provisions in Chapter IX of the Indian Penal Code dealing with public servants and those who abet them and the provisions in the Criminal Law Amendment Ordinance 1944 to enable attachment of illgotten wealth obtained through corrupt means, including from transferees of such wealth, were intended to be codified Page 12 of 29 HC-NIC Page 12 of 29 Created On Sat May 06 01:26:52 IST 2017 R/CR.MA/19779/2015 CAV JUDGMENT with modifications so as to make the provisions more effective in combating corruption among the public servants. The Statement of Objects and Reasons also envisages widening the scope of the definition of the expression, "public servant"; incorporation of offences under Sections 161 to 165A of the Indian Penal Code, enhancement of penalties provided for these offences.
23 It is no doubt true that when the Prevention of Corruption Act, 1988 was brought into force, the Legislature thought about bringing about a complete and exhaustive Code so far as the offences of bribery and corruption committed by public servants and abetment of the same by private individuals as well as offences committed by private individual and abetment of the same by the public servants. Sections 161 and 165 of the Indian Penal Code, as they stood then, deal with the offences committed by public servants, taking gratification other than legal remuneration in respect of art official act and obtaining valuable thing without consideration from person concerned in proceeding or business transaction by such public servant; Sections 162 and 163 speak about offences committed by any person (not necessarily a public servant) by taking gratification, in order, by corrupt or illegal means, to influence public servant or for the same purpose for exercise of personal influence with public servant. Section 164 of the Indian Penal Code, as it stood then, creates an offence of abetment by a public servant in relation to the offence under Sections 162 and 163 of the Indian Penal Code and punishment. Likewise an individual can be brought before Court for having abetted an offence committed by a public servant under Sections 161 and 165 of the Indian Penal Code. The offences spelt out in Sections 161 and 165 of the Indian Penal Code, now stand redrafted as Sections 7 and 11 of the 1988 Act. The offences provided for under Sections 162 Page 13 of 29 HC-NIC Page 13 of 29 Created On Sat May 06 01:26:52 IST 2017 R/CR.MA/19779/2015 CAV JUDGMENT and 163 of the Indian Penal Code how stand redrafted as Sections 8 and 9 of the present Act. Sections 164 and 165A of the Indian Penal Code now stand redrafted as Sections 10 and 12 of the 1988 Act. The aggravated form of the offence under Section 7 of the 1988 Act is brought in under Section 13(1)(a) and the aggravated form of the offence under Section 11 of the Act is now brought in as Section 13(1)
(b) of the present Act. While the new Act was brought into force, while deleting Sections 161 to 165A of the Indian Penal Code and bringing the same into the Corruption Act, they underwent some changes in achieving a deterrent punishment for the offenders. Criminal misconduct is made punishable under Subsection (2) to Section 5 of the 1947 Act and it is also under Subsection (2) to Section 13 of the present Act. Five types of criminal misconduct were described in clauses (a) to (e) of Section 5(1) of the old Act, which are also found as clauses (a) to (e) in Subsection (1) to Section 13 of the present Act. Clause (d) of Sub section (1) to Section 5 of the old Act is split into three Special divisions and brought as such in clause (d) in Subsection (1) to Section 13 of the present Act. Subdivision (3) as found in clause (d) to Subsection (1) to Section 13 of the present Act is a new provision.
24 The argument of Mr. Bharda, the learned counsel is that the 1988 Act is a selfcontained Code and it takes in all situations connected with corruption and bribery leaving no room at all for anyone to fall back on any other law, does not appear to be correct. It is no doubt true, with reference to the offences as found originally in Sections 161 to 165A of the Indian Penal Code, the 1988 Act is made as a complete Code. I have already noted in this judgment that criminal misconduct as brought in under clauses (a) and (b) of Subsection (1) of Section 5 of the old Act, corresponding to Section 13(1)(a) and (b) of the new Act, alone is Page 14 of 29 HC-NIC Page 14 of 29 Created On Sat May 06 01:26:52 IST 2017 R/CR.MA/19779/2015 CAV JUDGMENT covered by Sections 161 to 165A of the Indian Penal Code. There are three other types of criminal misconduct and they are found enumerated in clauses (c) to (e) of Subsection (1) of Section 13 of the 1988 Act. When each of clauses (a) to (e) of Subsection (1) of Section 13 of the 1988 Act are offences of criminal misconduct by themselves and distinct, it is not possible to say that once Sections 161 to 165A of the Indian Penal Code have been deleted and brought into the 1988 Act, all offences of abetting criminal misconduct as set out under Section 13 of the 1988 Act have been provided for in the 1988 Act itself. In respect of criminal misconduct falling under clauses (c) to (e) of Subsection (1) of Section 13 of the 1988 Act, when Sections 161 to 165A of the Indian Penal Code did not cover those situations, the prosecution had the option to fall back upon the other provisions contained in the Indian Penal Code to bring a person before Court for trial. In Lennart Schussler v. The Director of Enforcement, New Delhi, 1969 Law Weekly (Crl) 274, a question arose as to whether a person can be prosecuted for criminal conspiracy in respect of offence under the Indian Penal Code and offences under the Special or Local Law and in such circumstances can he be tried under Section 120B of the Indian Penal Code read with the offences either under the Indian Penal Code or Special Law as the case may be. The Special Law involved in that case was the Foreign Exchange Regulation Act. More or less a similar argument as in this case namely the Foreign Exchange Regulation Act is a complete Code by itself and it is exhaustive in nature in respect of offences falling under that Act and, therefore, the prosecution cannot be launched for an offence under that Law read with Section 120B of the Indian Penal Code, was advanced. The learned Judge held that there is no provision in the Foreign Exchange Regulation Act, which precludes a person from being prosecuted under Section 120B of the Indian Penal Code as well.
Page 15 of 29HC-NIC Page 15 of 29 Created On Sat May 06 01:26:52 IST 2017 R/CR.MA/19779/2015 CAV JUDGMENT 25 In Re: Mrs. B Gervase AIR (37) 1950 Madras 599 : 51 Cri LJ 1518, a question arose as to whether the Madras Buildings (Lease and Rent Control) Act excludes the application of the Penal Code to any offences committed by a person against any officers engaged in the administration of that Act when the requirements under the Indian Penal Code are satisfied. A learned Judge of the Madras High Court held, "(2) The learned counsel for the petitioner has raised four main contentions before me. The first was that the Madras Buildings (Lease and Rent Control) Act, 1946, was a complete and selfcontained Act and that the Penal Code could not be applied to any offence alleged to have been committed by a person against any officers engaged in the administration of that Act, and similar selfcontained Acts. The argument is wholly unsustainable. The Incometax Act and the Estates Land Act are even more complete Acts, and yet it is obvious that they will not exclude the operation of the Indian Penal Code wherever such operation is not expressly excluded, or excluded by necessary implication as by a provision for a separate punishment for such offences. If these were not so, even murders can be committed of persons carrying out the provisions of Madras Buildings (Lease and Rent Control) Act, 1946, and similar Acts, and nothing can be done as the Penal Code will be excluded. The simple rule of interpretation in such cases, like this, is that the Penal Code will apply wherever its application is not expressly or by necessary implication, excluded, and where the requirements prescribed under the Indian Penal Code for the offence charged are satisfied." An identical question, as in this case namely, whether a private individual can be prosecuted along with a public servant for an offence under Section 5(1)(e) of the 1947 Act read with Section 109 of the Indian Penal Code, came up before a learned single Judge of the Madras High Court. The learned single Judge, by Judgment dated 17th June 1988 in Page 16 of 29 HC-NIC Page 16 of 29 Created On Sat May 06 01:26:52 IST 2017 R/CR.MA/19779/2015 CAV JUDGMENT an unreported judgment in the Criminal Miscellaneous Petition No. 10950 of 1987, held that the offence of acquiring and being in possession of disproportionate assets can be abetted by another including one, who is not a public servant. An argument was advanced before the learned single Judge in that case that the gist of the offences under Section 5(1)(e) of the 1947 Act is the inability of the public servant to satisfactorily account for his assets found to be disproportionate to his known sources of income and this inability to account cannot be abetted by anyone, much less by one, who is not a public servant. It also appears that it was argued before the learned single Judge, who decided that case, that the failure to account for alone is the offence and not possession. The position in law on this aspect is that the possession of assets disproportionate to the known sources of income, by itself, would not be an offence initially but once the public servant fails to satisfactorily account for the same, then from that time, the possession becomes objectionable (See State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 : 1992 Cri LJ 527 and M. Krishna Reddy v. State Deputy Supdt. Of Police, Hyderabad). Therefore, it is possession, which is not satisfactorily explained, found to be disproportionate to the known sources of income, that is the offence. This is what the learned single Judge has also said in that case relying on State of Maharashtra v. K.K.S. Ramaswamy. This judgment of the learned single Judge was taken to the Honourable Supreme Court of India by a Special Leave Petition in the Special Leave Petition No. 2841 of 1998 and it was dismissed at the admission stage itself by judgment dated 14 th December 1988.
26 It is no doubt true that in respect of the offence of criminal misconduct falling under Section 13(1)(e) of the Act, it is only the public Page 17 of 29 HC-NIC Page 17 of 29 Created On Sat May 06 01:26:52 IST 2017 R/CR.MA/19779/2015 CAV JUDGMENT servant who has to explain and his failure results in the possession of the assets in an offence. The opportunity to explain is only with the public servant and not with the private individual. But that does not, as contended by the learned counsel for the applicants, lead to the conclusion that except the public servant, nobody else can be tried for having abetted the said offence. As already noticed, the possession of assets becomes an offence only when the public servant fails to satisfactorily account for the same. Failure to explain is not made an offence but the actual possession after the failure is made an offence. Section 13(1)(e) deals with possession by the public servant by himself or by any person on his behalf. Therefore, acquiring possession of assets in the ways referred to above is capable of being abetted. There is neither an express or implied exclusion in the 1988 Act to deal with such a situation falling back on Section 109 of the Indian Penal Code, of a private individual having abetted the said offence. [See: P. Nallammal vs. State, 1999 Cri.L.J. 1591].
27 In the aforesaid context, let me refer to and rely upon a decision of the Supreme Court in the case of P. Nallammal vs. State Rep. By Inspector of Police [(1999) 6 SCC 559. I may quote the relevant observations:
"21 There is no force in the contention that the offences under Section 13(1)(e) cannot be abetted by another person. "Abetment" is defined in Section 107 of the Penal Code as under:
"107. Abetment of a thing. A person abets the doing of a thing, who First. Instigates any person to do that thing; or Secondly, Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Page 18 of 29 HC-NIC Page 18 of 29 Created On Sat May 06 01:26:52 IST 2017 R/CR.MA/19779/2015 CAV JUDGMENT Thirdly. Intentionally aids, by any act or illegal omission, the doing of that thing."
For the "First" clause (i.e. instigation) the following Explanation is added to the section:
"Explanation 1. A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing."
For the "Thirdly" clause ( i.e. intentionally aids) the following Explanation is added:
"Explanation 2. Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act."
22 Shri Shanti Bhushan cited certain illustrations which, according to us, would amplify the cases of abetments fitting with each of the three clauses in Section 107 of the Penal Code visavis Section 13(1)(e) of the P.C. Act. The first illustration cited is this:
"If A, a close relative of the public servant tells him of how other public servants have become more wealthy by receiving bribes and A persuades the public servant to do the same in order to become rich and the public servant acts accordingly. If it is a proved position there cannot be any doubt that A has abetted the offence by instigation.
Next illustration is this:
Four persons including the public servant decide to raise a bulk amount through bribery and the remaining persons prompt the public servant to keep such money in their names. If this is a proved position then all the said persons are guilty of abetment through conspiracy.
The last illustration is this:
If a public servant tells A, a close friend of him, that he has acquired considerable wealth through bribery but he cannot keep them as he has no known source of income to account, he requests A to keep the said wealth in A's name, and A obliges the public servant in doing so. If it is a proved position A is guilty of abetment falling under the "Thirdly" clause of Section 107 of the Penal Code."Page 19 of 29
HC-NIC Page 19 of 29 Created On Sat May 06 01:26:52 IST 2017 R/CR.MA/19779/2015 CAV JUDGMENT 23 Such illustrations are apt examples of how the offence under Section 13(1)(e) of the P.C. Act can be abetted by nonpublic servants. The only mode of prosecuting such offender is through the trial envisaged in the P.C. Act."
28 In view of the above, I have no hesitation to reject the principal argument of the learned counsel that the private individuals cannot be prosecuted along with the public servant under Section 13(1)(e) of the 1988 Act read with Section 109 of the Indian Penal Code, as a misconceived one. In other words, the prosecution of the private individuals along with the public servant for the offences referred to above is well maintainable. Under Section 3 of the 1988 Act, the Special Judge has the power to try not only for the offences punishable under the Act, 1988, but also any conspiracy to commit or any attempt to commit or any abetment of any of the offences under the Act. The criminal misconduct coming under Section 13(a)(e) of the Act 1988 is a distinct offence by itself and, therefore, the Special Judge has the jurisdiction to try not only that offence against that offender who committed the same, but also try any person who had either conspired to commit the same or attempted to commit the same or abetted the same. The mother and wife respectively in this case are before the Court on the ground that they have abetted the act of criminal misconduct falling under Section 13(1)(e) of the 1988 Act committed by the public servant. In such circumstances, I hold that the prosecution in the present form is maintainable.
29 The above takes me to consider whether there is sufficient material on record to put the two applicants on trial. I find it extremely difficult to take the view that there is no material on record to put the applicants on trial.
Page 20 of 29HC-NIC Page 20 of 29 Created On Sat May 06 01:26:52 IST 2017 R/CR.MA/19779/2015 CAV JUDGMENT 30 In State of Bihar Vs. Ramesh Singh, (1977) 4 SCC 39, while referring to section 227 of the Code, the Supreme Court observed:
"at that stage, the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of the suspicion cannot take the place of proof of his guilt at the conclusion of the trial. But if at the initial stage, if there is a strong suspicion, which leads the Court to think that there is a ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused."
The Supreme Court observed that: "If the evidence which the Prosecutor to adduced to prove the guilt of the accused, even if fully accepted before it is challenged in crossexamination or rebutted by the defence evidence if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial."
The Supreme Court then went on to observe "If the scales as to the guilt or innocence of the accused are even at the conclusion of the trial, then on the theory of benefit of doubt the case must end in the acquittal of the accused; but if, on the other hand, the scales are even at the initial stage of making an order under section 227 or section 228, then in such a situation, ordinarily and generally the order will have to be made under section 228 and not under section 227."
31 In Union of India vs. Prafulla Kumar Samal, 1979 AIR (SC) 366 the Supreme Court reiterated the same principles but added that at the stage of Section 227 of the Code, the Court has the power to sift and weigh the evidence to find out whether there is any prima facie case against the accused but if two views are equally possible and the Judge is satisfied that the evidence gives rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. The Supreme Court further observed that the Page 21 of 29 HC-NIC Page 21 of 29 Created On Sat May 06 01:26:52 IST 2017 R/CR.MA/19779/2015 CAV JUDGMENT Judge should not act as a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence, any basic infirmities in the case and so on. The Supreme Court clarified that this however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
32 In Superintendent & Remembrancer of Legal Affairs, West bengal v. Anil Bhunja & Ors., AIR 1980 SC 52, the Supreme Court observed that the standard test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied at the stage of Section 227 or Section 228. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged, may justify the framing of charges against the accused in respect of the commission of that offence.
33 Same principles were reiterated by the Supreme Court in Niranjan Singh Karam Singh Punjabi v. Jiendra Bijja & Ors. AIR 1990 SC 1962.
34 In State of Maharashtra & Ors. v. Som Nath Thapa & Ors. (1996) 4 SCC 659, the Supreme Court observed that if there is a ground for presuming that the accused has committed the offence, it can be said that a prima facie case has been made out against the accused. Even if the court finds that the accused might have committed the offence, it can frame the charges. The Supreme Court clarified that at the stage of framing of charge, the probative value of the materials on record should not be gone into.
Page 22 of 29HC-NIC Page 22 of 29 Created On Sat May 06 01:26:52 IST 2017 R/CR.MA/19779/2015 CAV JUDGMENT 35 In State of Maharashtra v. Priya Sharan Maharaj & Ors. AIR 1997 SC 2041, the Supreme Court again reiterated that at the stage of framing of the charge, the court has to consider the material with a view to finding out if there is ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.
36 In Dilawar Balu Kurane vs. State of Maharashtra [(2002) 2 SCC 135], the Supreme Court extensively quoted observations made by it in Prafulla Kumar Samal's case (supra)and reiterated the same principles.
37 It is also necessary to refer to the Supreme Court's judgment in the State of Karnataka v. L. Mniswamy & Ors (1977) 2 SCC 699. In that case, some of the accused were discharged by the learned Session Judge under Section 227 of the Code. So far as the other accused were concerned, the learned Sessions Judge adjourned their case for framing charges against them. Two revision petitions were filed against this order. These petitions were allowed by the Karnataka High Court on the view that there was no sufficient ground for proceeding against them. It is clear from the first paragraph of the Supreme Court judgment that the High Court had, in exercise of its powers under Section 482 of the Code, quashed the proceedings initiated by the State of Karnataka. Being aggrieved by this judgment, the State of Karnataka approached the Supreme Court. The Supreme Court referred to Section 227 of the Code and observed that the High Court is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order of discharge is justified. The Supreme Court then Page 23 of 29 HC-NIC Page 23 of 29 Created On Sat May 06 01:26:52 IST 2017 R/CR.MA/19779/2015 CAV JUDGMENT referred to Section 482 of the Code and observed that in exercise of the wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The Supreme Court further observed that this power is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. The following observation of the Supreme Court needs to be quoted.
"In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction."
38 It is significant to note that when the attention of the Supreme Court was drawn to the judgment in R.P. Kapur v. The State of Punjab, AIR 1960 SC 866 to the effect that in its inherent jurisdiction, the High Court cannot embark upon an enquiry as to whether the evidence in the case is reliable or not, the Supreme Court reaffirmed this position and referring to the facts before it observed that in that case, there was no material on record on the basis of which any court could reasonably come to the conclusion that the accused were in any manner connected with the crime. Of course, in this case, the Supreme Court has also referred to Section 227 of the Code and observed that in exercise of this power, the court can determine the question whether the material on record if unrebutted is such on the basis of which a conviction can be Page 24 of 29 HC-NIC Page 24 of 29 Created On Sat May 06 01:26:52 IST 2017 R/CR.MA/19779/2015 CAV JUDGMENT reasonably possible. But, it must be remembered that primarily the Supreme Court was dealing with the High Court's power under Section 482 of the Code and that was a case where there was no material to reasonably connect the accused with the crime. Undoubtedly, the powers of the High Court under Section 482 of the Code are very wide and as observed by the Supreme Court, it has to consider the ends of justice and not the ends of mere law. In any case, what the Supreme Court has said in this judgment does not go counter to what it has said on this point in a line of judgments, which I have referred to hereinabove.
39 In the case of Rukmini Narvekar v. Vijaya Satardekar, 2009 AIR (SCW) 118, the Apex Court has observed thus at paragraph9:
"9. In my view, therefore, there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such material as are indicated in Section 227, Code of Criminal Procedure can be taken into consideration by the learned magistrate at that stage. However, in a proceeding taken therefrom under Section 482, Code of Criminal Procedure the Court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained. Thus, in my view, appears to be the intention of the legislature in wording Sections 227 and 228 the way in which they have been worded and as explained in Debendra Nath Padhis case by the large Bench to which the very same question had been referred.
Paragraph28 of the aforesaid decision is as under:
"28. We have carefully perused the decision of this Court in the State of Orissa v. Debendra Nath Padhi. Though the observations in paragraph 16 of the said decision seems to support the view canvassed by Shri Rohatgi, it may be also pointed out that in paragraph 29 of the same decision it has been observed that the width of the powers of the High Court can make such orders as may be necessary to prevent abuse of the process of the court or otherwise to secure the ends of justice within the parameters laid down in Bhajan Lal v. case. Thus we have to reconcile paragraphs 17 and 23 of the decision in State of Orissa v. Debendra Nath Padhi. We should also keep in mind that it is well settled that a Page 25 of 29 HC-NIC Page 25 of 29 Created On Sat May 06 01:26:52 IST 2017 R/CR.MA/19779/2015 CAV JUDGMENT judgment of the Court has not to be treated as a Euclid formula vide Dr. Rajbir Singh Dalai v. Chaudhari Devi Lai University Sirsa and Anr., 2008 8 JT 621. As observed by the Court in Bharat Petroleum Corporation Ltd. and Anr. v. N.R. Vairamani and Anr., 2004 AIR (SC) 4778, OBSERVATIONS OF Courts are neither to be read as Euclids formula nor as provisions of the statute. Thus in our opinion while it is true that ordinarily defence materials cannot be looked into by the Court while framing of the charge in view of D.N. Padhis case, there may be some very rare and exceptional cases where some defence material when shown to the trial court would convicingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare eases the defence material can be looked into by the Court at the time of framing of the charges or taking cognizance."
Further, in paragraph29 of the said decision, the Apex Court has also laid down the circumstances under which (the defence can also produce some material i.e., where the material produced by the defence would convincingly establish that the whole prosecution version is totally absurd, preposterous or concocted.
40 In the case of State of Orissa v. Debendra Nath Padhi, 2005 SCC (Cri) 415, which is a decision of a three judges Bench of the Apex Court, it has been held that, at the time of framing of the charge, the trial Court can consider only the material produced by the prosecution and there is no provision in the Code of Criminal Procedure granting the accused any right to file any material or document at that stage. The Apex Court went on to further observe that such a right is granted only at the stage of trial.
41 The principles laid down by the Supreme Court in the above cases need to be summarized. It is settled law that at the stage of Section 227 of the Code, the court has power to sift the materials collected by the prosecution to find out whether there is prima facie case against the Page 26 of 29 HC-NIC Page 26 of 29 Created On Sat May 06 01:26:52 IST 2017 R/CR.MA/19779/2015 CAV JUDGMENT accused or not. The court has to be satisfied that there is ground for presuming that the accused has committed the offence or that there is no sufficient ground for proceeding against him. The Court's enquiry must not be directed to find out whether the case will end in conviction. However, though roving enquiry is not permissible, the court can consider whether the material collected by the prosecution if accepted as it is without being subjected to crossexamination gives rise to strong and grave suspicion for presuming that the accused has committed the offence and that unrebutted material will lead to a conviction. If at the stage of Section 227 or Section 228, the scales as to the guilt or innocence of the accused are even then the court must proceed to frame a charge. There is no question of giving benefit of doubt to the accused and discharge the accused at that stage because the scales are even. That can be done only at the conclusion of trial. If there is a strong suspicion which leads the court to think that there is a ground for presuming that the accused has committed an offence, then the court will proceed to frame the charge. But if two views are possible and the court is satisfied that the evidence gives rise to some suspicion but not grave suspicion against the accused, the court will be within its right to discharge the accused. Suspicion has to be strong and grave suspicion leading the court to presume that the accused has committed an offence. While basic infirmities and broad probabilities can be considered, the court cannot make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it is conducting a trial. Probative value of the material cannot be gone into at that stage.
42 The above takes me to consider the last submission as regards the power of the C.B.I. to investigate into the returns filed by the applicants of the income and the assessment under the Income Tax Act. I do not Page 27 of 29 HC-NIC Page 27 of 29 Created On Sat May 06 01:26:52 IST 2017 R/CR.MA/19779/2015 CAV JUDGMENT find any substance in the argument of Mr. Bharda that the income tax authorities having once assessed the returns filed by the two applicants time to time and having accepted the same without any query or objection, it is not open for the C.B.I. to say that such investments at the end of the two applicants was just a sham and was nothing, but the investment through the income illegally derived by the public servant.
43 The reliance placed on the Supreme Court decision in the case of C.B.I. vs. State of Rajasthan (supra) is also thoroughly misconceived. The same has no application to the facts of the present case. In the said case, the offence under FERA was committed outside India. The Delhi Special Police took the investigation under the Delhi Special Police Establishment Act, 1946. A Notification was issued under Sections 3 and 5 of the Act authorising the members of the Delhi Special Police Establishment to investigate various offences including the offence under the FERA. The Supreme Court observed that the FERA is a special Act and selfcontained Code. It took notice of the fact that the officers of the Enforcement Director were possessed with the power to implement the provisions of FERA. The Government too could have authorised by a notification the police officers to carry out the powers and duties under the FERA. The Supreme Court noticed that there was no such Notification issued by the Government authorising the Delhi Special Police Establishment members to exercise the powers to implement the provisions of FERA and functions of the Enforcement Directorate. In such circumstances, it was held that the DSPE was not competent to investigate into the offence under FERA.
44 In the case on hand, it cannot be said that the C.B.I. investigated into the assessment orders of the income tax authorities under the Page 28 of 29 HC-NIC Page 28 of 29 Created On Sat May 06 01:26:52 IST 2017 R/CR.MA/19779/2015 CAV JUDGMENT Income Tax Act. The C.B.I., on the basis of the materials, has filed chargesheet alleging that the public servant concerned amassed assets disproportionate to his known source of income and purchased properties in the names of his wife and mother, and thereby, the wife and the mother abetted the commission of the offence punishable under Section 109 of the Indian Penal Code.
45 For the foregoing reasons, both the applications fail and are hereby rejected. Notice stands discharged.
46 The C.B.I. Court shall now proceed further with the framing of the charge.
(J.B.PARDIWALA, J.) chandresh Page 29 of 29 HC-NIC Page 29 of 29 Created On Sat May 06 01:26:52 IST 2017