Jharkhand High Court
Mukteshwar Prasad Singh vs The State Of Jharkhand Through C.B.I. ... on 1 December, 2006
JUDGMENT D.K. Sinha, J.
1. The petitioner has preferred this petition under Section 482 Cr.P.C. for quashment of the order taking cognizance dated 7.12.2005 passed by the Additional Sessions Judge-cum-Special Judge C.B.I., Dhanbad in R.C.1(A)/04/C.B.I./A.H.D./ Ranchi for the offence under Section 13(2) read with 13(1)(e) of the Prevention of Corruption Act and also the entire criminal proceeding against him.
2. The prosecution case in brief is that the F.I.R. of the case was registered on 8.3.04 at C.B.I /AHD/Ranchi by Shri R.C. Chaudhary, S.P/C.B.I./A.H.D./Ranchi on the basis of information received through source to the effect that the petitioner Mukteshwar Prasad Singh, while was functioning as Inspector of Income tax in the office of Income Tax Commissioner, Dhanbad and in various capacity during the period 1978 to 2003 acquired properties by corrupt practices and illegal means and for such possession he could not give satisfactory account. It was further alleged that the petitioner was in possession of the properties worth Rs. 30 lakhs approximately, in the form of house, homestead land etc. in his own name as well as in the name of the members of his family which was acquired during 1978 to 2003 whereas the petitioner had received during such period, a total income of Rs. 15.54 lakhs from his salary and house rent being the known source. The household expenditure of the petitioner was estimated at Rs. 3,74,000/- and his likely saving at Rs. 11,80,000/-. The extent of the disproportionate assets was counted at Rs. 18,20,000/-and accordingly the case was registered under Section 5(2) read with Section 5(i)(e) of the Prevention of Corruption Act, 1947 corresponding to Section 13(2) read with Section 13(i)(e) of the PC. Act, 1988 The C.B.I, after investigation submitted charge-sheet on 30.7.05 against the petitioner before the Special Court and the Commissioner of Income Tax-I, Patna vide order dated 20th July, 2005 accorded sanction for prosecution against the petitioner under Section 19 of the Prevention of Corruption Act, 1988.
3. Learned Counsel appearing on behalf of the petitioner submitted that without conducting a preliminary enquiry into the matter and allegation on the complaint from 'source' the F.I.R. was instituted by the Superintendent of Police C.B.I, in haste. The case was investigated after the institution of. F.I.R. by Shri Manas Kumar Bakshi, Sub-Inspector of Police, A.H.D./Ranchi who was not a competent officer for investigation of the present case under specific provision of Section 17 of the P.C. Act, 1988. The provisions of Section 17 of the PC. Act, authorizes only Inspector of Police to make investigation in such cases and therefore, the investigation conducted by the officer below the rank of Inspector vitiates the entire investigation and accordingly the order taking cognizance of the offence is erroneous, which is unsustainable.
4. Advancing his argument, learned Counsel with reference to the letter of Assistant Valuation Officer dated 22.3.05 (Annexure-5) addressed to Deputy Commissioner of Income Tax, Circle V, Patna devised the competent authority in the valuation of the properties of different gradations. The said letter communicated that Assistant Valuation Officer would assess the estimate cost of the construction of the properties up-to 10 lakhs, Valuation Officer upto 50 lakhs and District Valuation Officer above 50 lakhs but in the instant case the valuation of the property of the petitioner was made by the District Valuation Officer, Kanpur who was not a competent officer and that it was not prima facie assessed that the properties of the petitioner valued to be more than 50 lakhs. It was a fact that Assistant Valuation Officer was posted at Ranchi and Valuation Officer was posted at Patna but due to vested interest the work of valuation was assigned to the District Valuation Officer posted at Kanpur without any explanation. It would be relevant to mention that the valuation made by the District Valuation Officer, Kanpur was based upon the valuation of the property on the day of search and seizure and the settled principle of law is that the valuation of property for the purpose of determining the disproportionate assets is to be made on the basis of the market rate of the property during the purchase and not the current.
5. By describing the family tradition and finding assets of the petitioner the learned Counsel submitted that Late Shiv Bachan Singh was the grandfather of the petitioner who was an effluent agriculturist and the father of the petitioner late Janki Singh was a contractor for more than 35 years at Dhanbad and was an income tax assessee since 1969-70. The father of the petitioner who died on 17.3.03 had purchased a plot in the year 1962 during his life time and constructed double storeyed building thereon much before the entry of the petitioner in Government' service. The said building was occupied by the different members of the family of the petitioner including his self earning son Kamlesh Kumar Singh as well as two brothers of the petitioner with their family members and apart, the ground floor was let out on rent by the father of the petitioner. When the said building was searched on 10.3.04 by the C.B.I. officials in connection with the instant case the belongings of the different members of the family were clubbed together and were shown as the acquisition of the petitioner only. The petitioner was initially appointed as L.D.C in the Income Tax Department, Dhanbad and by dint of his hard work and perseverance he was promoted to the rank of Inspector of Income Tax w.e.f. 12.12.2001 in the revised scale of 6500-200-10000. The only acquisition of the petitioner during 28 years of his service was the plot of land measuring 2920 Sq. ft: at Jharudih, Ward No. II, Dhanbad in 1988 for consideration of Rs. 30,000/- by registered sale deed and that too after obtaining prior permission of the Department. He raised construction over that plot between the 1992-2003 in different stages depending upon the availability of the fund. He has obtained a sum of Rs. 80,000/- as advance from his G.P.F. account for the construction of that house and also had taken building loan of Rs. 69,000/- from the Department but the Investigating Officer completely ignored the house building loan of 69,000/- taken by the petitioner. The same building has been assessed at the inflated rate of Rs. 13,75,200/- whereas its valuation would not be more than Rs. 10,51,408/- being evaluated by the approved valuer of Income Tax Department. The petitioner has given the account of loan taken from different persons on different dates and the learned Counsel submitted that the prosecution agency with mala fide intention implicated the petitioner for the alleged offence for certain bias.
6. Finally, stressing upon the mandatory provision of Section 17 of the P.C. Act learned Counsel submitted that Sub-Inspector of Police is not authorized under the Act to investigate the case and reliance has been placed upon the decision . The Apex Court in State Inspector of Police, Vishakhapatnam v. Surya Sankaram Karri observed:
Provisions of the 1988 Act, no doubt, like the 1947 Act seek to protect public servant from a vexatious prosecution. Section 17 provides for investigation by a person authorized in this behalf. The said provision contains a non obstante clause. If makes investigation only by police officers of the ranks specified therein to be imperative in character. The second proviso appended to Section 17 of the Act provides that an offence referred to in Clause (c) of Sub-section (1) of Section 13, shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police. Authorization by a Superintendent of Police in favour of an officer so as to enable him to carry out investigation in terms of Section 17 of the Act is a statutory one. The power to grant such sanction has been conferred upon the authorities not below the rank of a Superintendent of Police. The proviso uses a negative expression. It also uses the expression "shall". Ex facie it is mandatory in character. When the authority of a person to carry out investigation is questioned on the ground that he did not fulfil the statutory requirements laid down therefor in terms of the second proviso, the burden, undoubtedly, was on the prosecution to prove the same.
7. In the instant case no authority was entrusted to the Sub-Inspector of Police C.B.I. for investigation of the case and therefore, the charge-sheet as well as the cognizance of the offence taken by the Court for the offence is vitiated and is liable to be quashed.
8. Mr. Rajesh Kumar, the learned Standing Counsel, C.B.I. submitted that from the final form submitted in the instant case it would be evident that the petitioner was to have acquired or found to be in possession disproportionate assets to the tune of Rs. 27,51,646/- for which he has no explanation. The charge-sheet has got hearing that necessary sanction for prosecution against the accused petitioner Mukteshwar Prasad Singh was obtained from the competent authority and the same was enclosed for taking cognizance. A list of documents have been filed containing as many as 160 items with the list of witnesses in support of the case total 87 in number. The sanction was accorded by the Commissioner of Income Tax-I, Patna a competent authority to accord sanction (Annexure-3).
9. Finally he submitted that the Superintendent of Police, C.B.I., A.H.D., Ranchi entrusted the investigation to the competent police officer under the law and after investigation Final Form was submitted against the petitioner under the various Sections of the Prevention of Corruption Act, 1988. But the learned Counsel C.B.I. failed to satisfy the court as to how a sub-inspector of police, C.B.I. was a competent police officer Under Section 17 of the P.C. Act to investigate the present case and to submit Final Form. No authority letter or notification has been produced in this regard in respect of competency of a sub-inspector of police to investigate the instant case and to submit Final Form Under Section 173 of the Code of Criminal Procedure.
10. Reliance has been placed upon the decision reported in (2003) 8 S.C.C. 195. In Union of India v. Prakash P. Hinduja and Anr. while devising guidelines in respect of exercise of inherent power under Section 482 Cr.P.C. it was observed:
Section 482 Cr.P.C. saves inherent powers of the High Court and such a power can be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice. The power can therefore be exercised to quash the criminal proceedings. The grounds on which the prosecution initiated proceedings against an accused can be quashed by the High Court in exercise of power conferred by Section 482 Cr.P.C. has been settled by a catena of decisions of this Court rendered in R.P. Kapur v. State of Punjab, Madhu Limaye v. State of Maharasthra, Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Raj Kapoor v. State. The matter was examined in considerable detail in State of Haryana v. Bhajan Lal and after review of practically all the earlier decisions, the Court in para 108 of the Report laid down the grounds on which power under Section 482 Cr.P.C. can be exercised to quash the criminal proceedings and basically they are: (1) where the allegations made in the F.I.R. or complaint, eyen if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, (2) where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, (3) where there is an express legal bar engrafted in any of the provisions of the Code of Criminal procedure or the Act concerned to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection.
11. From the facts of the case it is manifest that the petitioner (Mukteshwar Prasad Singh) an Inspector of Income Tax working in the office of Income Tax, Dhanbad was prosecuted for the alleged offence under Section 5(2) read with Section 5(i)(e) of the Prevention of Corruption Act, 1947 as also under Section 13(2) read with Section 13(i)(e) of the Prevention of Corruption Act, 1947 as also under Section 13(2) read with Section 13(i)(e) of the Prevention of Corruption Act, 1988 on the allegation of amassing disproportionate assets beyond known source of income which counted Rs. 18,20,000/- on the F.I.R. contained signed by the Superintendent of Police, C.B.I., A.H.D., Ranchi drawn on 8.3.04. After institution of the case the investigation was entrusted to Shri A.K. Jha, Inspector, C.B.I. but after investigation the petitioner (Mukteshwar Prasad Singh) was found to have acquired or found to be in possession of assets worth Rs. 36,35,805/- beyond his income to the tune of Rs. 20,65,775.70/- which break off expenditure amounting to Rs. 11,81,616.73/- and likely saving amounting to Rs. 8,84,158.97/- during the checking period and in this manner after investigation of the case it was found that the petitioner was in possession of disproportionate assets to the tune of Rs. 27,51,646.03/- for which he has no explanation and in this manner the charge-sheet was submitted for the offence punishable under Section 5(i)(e) of the Prevention of Corruption Act, 1947 corresponding to Section 13(2) read with Section 13(i)(e) of the Prevention of Corruption Act, 1988. The necessary sanction was obtained from the Commissioner of Income Tax No. 1, Patna under Section 19(i)(c) of the Prevention of Corruption Act, 1988 on 20.7.2005 upon Submission of charge-sheet, the special judge, C.B.I.-cum- 8th Additional Sessions Judge, Dhanbad took the cognizance of the offence under Section 5(2) read with Section 5(i)(e) of the Prevention of Corruption Act, 1947 corresponding to Section 13(2) read with Section 13(i)(e) of the Prevention of Corruption Act, 1988 on 7.12.2005 by the order impugned. Accordingly, summons were directed to be issued against the petitioner for his appearance in the Special Court on 20.1.2006.
12. The short question for consideration on the point of law is as to whether or not Shri Manas Kumar Bakshi, Sub-Inspector of Police A.H.D., Ranchi was a competent officer under Section 17 of the Prevention of Corruption Act, 1988 to investigate the present case for the Sections related to alleged offence.
13. Chapter IV of Prevention of Corruption Act, 1988 deals with the investigation into the cases under the Act and Section 17 specifies the person authorized to investigate the case, which clearly indicates:
Notwithstanding anything contained in the code of criminal procedure, 1973 (2 of 1974), no police officer below the rank-
(c) Elsewhere of a Deputy Superintendent of Police or a police officer of equivalent rank, shall investigate any offence punishable under this act without the order of a metropolitan Magistrate or a Magistrate of the First Class, as the case may be, or make any arrest, therefor without a warrant.
Provided that if a police officer not below the rank of an Inspector of Police is authorized by the State Government in this behalf by general or special order he may also investigate any such offence without the order of a metropolitan magistrate or a Magistrate of the First Class, as the case may be or make arrest therefor without a warrant.
Provided further that an offence referred to in Clause (e) of Sub-section (1) of Section 13 shall not be investigated without the order of a police officer not below the rank of a superintendent of Police.
14. The provisions of Section 17 are mandatory and sanctioned by an officer not below the rank of Superintendent of Police, in respect of an offence under Clause (e) of Sub-section (i) of Section 13, is a prerequisite to conduct the investigation.
15. But in the present case though the Superintendent of Police, C.B. I., A.H.D., Ranchi entrusted the investigation of the instant case to Shri A.K. Jha, Inspector, C.B.I., A.H.D., Ranchi but the Final form under Section 173 Cr.P.C. was submitted by Shri Manas Kumar Bakshi Sub-Inspector of Police, C.B.I., A.H.D., Ranchi after investigation who was not authorized to do so under the provisions of law as aforesaid.
16. Therefore, the cognizance taken by the Special Judge, C.B.I., Dhanbad pursuant to the charge-sheet submitted by an officer after investigation not unauthorized to do so is unsustainable and illegal.
17. In the result, the cognizance taken by the Special Judge in R.C. Case No. 1(A)/2004-A.H.D.-R on 7.12.2005 by the Court of Special Judge, C.B.I.-cum- 8th Additional Sessions Judge, Dhanbad is set aside with the liberty to the prosecution to get the investigation of the instant case conducted by an officer competent under Section 17 of the Prevention of Corruption Act, 1988 and accordingly to file Final report under Section 173 Cr.P.C.
18. With this observation, this petition is disposed of.