Madras High Court
A.P.Pillai vs The State Represented By on 13 August, 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:13.08.2013 CORAM THE HON'BLE MR.JUSTICE T.SUDANTHIRAM CRL.R.C.Nos.1287 and 1288 of 2012 and M.P.Nos.1 and 1 of 2012 A.P.Pillai .. Petitioner in Crl.R.C.No.1287/2012/A.1 Ramalakshmi .. Petitioner in Crl.R.C.No.1288/2012/A.2 .. Vs .. The State represented by, The Inspector of Police, SPE:CBI:ACB: Chennai. .. Respondent in both Crl.R.Cs./Complainant Prayer in both Crl.R.Cs.:- Criminal Revision Cases filed under Section 397 r/w. 401 of the Code of Criminal Procedure, praying to call for the records in C.C.No.19 of 2012 and set aside the order passed in Crl.M.P.No.420 of 2012, dated 21.09.2012, on the file of the learned XIV Additional Sessions Judge-cum-Special Judge (CBI Cases), Chennai and discharge the petitioners in C.C.No.19 of 2012. In both Crl.R.Cs. For Petitioners : Mr.K.S.Arumugam For Respondent : Mr.N.Chandrasekaran, Special Public Prosecutor for CBI Cases. - - - - - COMMON ORDER
The petitioner in Crl.R.C.No.1287 of 2012 is the first accused and the petitioner in Crl.R.C.No.1288 of 2012 is the second accused in C.C.No.19 of 2012 on the file of the learned XIV Additional Special Judge for CBI Cases, Chennai. The first accused was working as Manager in Indian Overseas Bank, Central Office, Anna Salai, Chennai. The second accused is the wife of the first accused. A final report has been filed for an alleged offence under Section 13(2) r/w. 13(1)(e) of Prevention of Corruption Act, 1988 against the first accused and under Section 13(2) read with 13(1)(e) of Prevention of Corruption Act, 1988 r/w. 109 I.P.C. against the second accused. The petitioners have filed a petition before the trial Court under Section 213 Cr.P.C., seeking to discharge them and the said petition was dismissed. Challenging the said order, the petitioners have preferred the above two Criminal Revision Cases before this Court.
2. The learned counsel for the petitioners submitted that before filing the final report against the accused, the Investigating Officer did not call for any explanation from the accused and therefore, the mandatory pre-requisite condition has not been fulfilled by the prosecution. The learned counsel for the petitioners vehemently submitted that an opportunity should have been provided to the accused by the Investigating Officer and the Investigating Officer, with mala fide intention, filed final report against the accused.
3. Per contra, the learned Special Public Prosecutor for CBI Cases submitted that it has been stated in the final report at paragraph No.10 that during the course of investigation, the first accused and his wife viz., the second accused have been examined and they have been given opportunities to explain and give satisfactory account for the disproportionate assets, but, the first accused has not offered any satisfactory explanation worthy of acceptance. The learned Special Public Prosecutor further submitted that according to the counter filed by the respondent, the Investigating Officer has called for his explanation in person from the accused by showing the statements on 19.12.2011 and he had no satisfactory explanation for the disproportionate assets. The learned Special Public Prosecutor also submitted that though it is stated in the counter that an explanation was called for from the accused only in person, only on perusal of case diary, it could be ascertained what exactly transpired between the accused and the Investigating Officer. The learned Public Prosecutor also submitted that asking for an explanation in person without giving notice in writing, is not an illegal procedure.
4. This Court considered the submissions made by the learned counsel on either side and perused the records.
5. According to the first accused, who is a public servant, the Investigating Officer did not ask for any explanation from him to satisfactorily account the possession of assets. As per the counter filed before the trial Court as well as the counter filed before this Court, the Investigating Officer has not given any notice in writing to the public servant/the first accused calling for his explanation by furnishing the copy of the statements A to D. Though as per the counter it is only stated that the Investigating Officer called for explanation in person and the accused have not given any satisfactory explanation, this Court is not in a position to accept it.
6. Section 13(1)(e) of the Prevention of Corruption Act reads as follows:-
"13. Criminal misconduct by a public servant.- (1) A public servant is said to commit the offence of criminal misconduct,-
(a) .....
(b) ....
(c) ....
(d) ....
(e) 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.
Explanation.- For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant."
Though there is no specific procedure contemplated under the provision of Prevention of Corruption Act, normally it is expected that the Investigating Officer, while calling for explanation from the accused, must give notice to the accused in writing along with the statements showing the disproportionate amount and sufficient reasonable time must be given for his explanation. On receiving the explanation in writing and if not given in writing on recording his oral statement if any and thereafter if the Investigating Officer concludes that public servant has not satisfactorily accounted then he may file the final report and not before that.
7. Though the learned Special Public Prosecutor stated that the case diary should be perused for the purpose of ascertaining whether the Investigating Officer called for explanation orally, this Court feels that it is not necessary since in both the counters filed before the trial Court as well as before this Court, it is stated that an explanation was called for by the Investigating Officer orally only and not in writing. It is imperative on the part of the Investigating Officer to satisfy the Court that he called the public servant to satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.
8. It is to be held in this case that pre-requisite condition has not been complied by the Investigating Officer that is so as to satisfy himself he called public servant to satisfactorily account. In the said situation, the final report filed by the Investigating Officer against the accused is invalid. Hence, the proceedings against the accused 1 and 2 are liable to be quashed.
9. In the result, both the Criminal Revision Cases are allowed and the proceedings against the accused 1 and 2 are quashed. Consequently, the connected miscellaneous petitions are closed.
10. However, it is open to the Investigating Officer to call for an explanation from the accused by giving notice in writing and thereafter proceed according to law.
13.08.2013 Index : Yes Internet : Yes jrl Note:- Issue order copy on 21.08.2013 To
1. The XIV Additional Special Judge for CBI Cases, Chennai.
2. The Inspector of Police, SPE:CBI:ACB: Chennai.
3. The Special Public Prosecutor for CBI Cases, High Court, Madras.
T.SUDANTHIRAM, J.
jrl CRL.R.C.Nos.1287 & 1288/2012 13.08.2013