Karnataka High Court
Central Bureau Of Investigation vs Smt V M Saraswathy on 20 December, 2021
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF DECEMBER, 2021
R
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL REVISION PETITION No.304 OF 2019
C/W
WRIT PETITION No.33084 OF 2018 (GM-RES)
IN CRIMINAL REVISION PETITION No.304 OF 2019
BETWEEN:
CENTRAL BUREAU OF INVESTIGATION
(ANTI-CORRUPTION BRANCH)
NO.36, BELLARY ROAD
GANGANAGAR
BENGALURU - 560 032
REPRESENTED BY ITS
INSPECTOR OF POLICE.
... PETITIONER
(BY SRI PRASANNA KUMAR P., SPL.PP (PHYSICAL HEARING))
AND:
SMT.V.M.SARASWATHY
STAFF QUARTERS NO.33
CENTRAL RESEARCH INSTITUTE STATION
POST, BALEHONNUR
CHIKKAMAGALURU DISTRICT
KARNATAKA - 577 112
NOW RESIDING AT
NO.40, 2ND CROSS, DOCTORS LAYOUT
KASTHURINAGAR
BENGALURU - 560 043.
... RESPONDENT
(BY SRI P.N.MANMOHAN, ADVOCATE (PHYSICAL HEARING))
2
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 CR.P.C. PRAYING TO SET ASIDE
THAT PART OF THE ORDER DATED 06.06.2018 PASSED BY THE
LEARNED XXXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE
AND SPECIAL JUDGE FOR CBI CASES, BANGALORE IN
SPL.C.C.NO.308/2015 THEREBY ORDERING TO FRAME CHARGE
AGAINST THE 2nd ACCUSED/RESPONDENT HEREIN FOR THE
OFFENCE P/U/S 13(1)(e) R/W 13(2) OF P.C ACT, INSTEAD OF
ORDERING TO FRAME CHARGE AGAINST HER FOR THE
OFFENCE U/S 109 OF IPC AND CONSEQUENTLY ORDER
FRAMING OF CHARGE AGAINST THE ACCUSED
NO.2/RESPONDENT HEREIN FOR THE OFFENCE P/U/S 109 OF
IPC.
IN WRIT PETITION No.33084 OF 2018
BETWEEN:
SMT.V.M.SARASWATHY
W/O LATE M.SELVAKUMAR
AGED ABOUT 60 YEARS,
R/AT NO. 40, 2ND CROSS,
DOCTORS LAYOUT, B.CHANNASANDRA
KASTHURI NAGARA
BENGALURU - 560 043.
... PETITIONER
(BY SRI MANMOHAN P.N., ADVOCATE (PHYSICAL HEARING))
AND:
1. STATE, REPRESENTED BY
CENTRAL BUREAU OF INVESTIGATION
AND ANTI CORRUPTION BRANCH (CBI/ACB)
NO.36, BELLARY ROAD, GANGANAGAR
BENGALURU - 560 032.
2. THE COFFEE BOARD
NO.1, DR.AMBEDKAR VEEDHI
BENGALURU - 560 001
REPRESENTED BY ITS CHAIRMAN.
... RESPONDENTS
3
(BY SRI P.PRASANNA KUMAR, SPL.P.P. FOR R1 (PHYSICAL
HEARING);
SRI M.VINOD KUMAR, ADVOCATE FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482
OF CODE OF CRIMINAL PROCEDURE PRAYING TO QUASH THE
FIR DATED 19.2.2014 REGISTERED IN RC 04(A)/ 2014 - CBI/
ACB / BLR AND QUASH THE CHARGE SHEET DATED 1.6.2015
FILED BY THE R-1 VIDE ANNEX-C AND D; AND ETC.,
THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 26.10.2021, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
Whether abatement annihilates abetment is the issue to be answered in the subject lis.
2. Writ Petition No.33084/2018 is filed by the accused No.2 calling in question an order dated 6-06-2018 passed by the XXXII Additional City Civil and Special Judge for CBI cases in Special C.C.No.308 of 2015 and also seeks quashing of the FIR registered on 19-02-2014 and the charge sheet dated 1.06.2015. The Criminal Petition No.304 of 2019 is filed by the Central Bureau of Investigation ('CBI') calling in question the very same order passed in Special C.C.No.308 of 2015 dated 6-06-2018. Therefore both these petitions are taken up together, heard and considered.
43. Brief facts leading to the filing of these petitions, as borne out from the respective pleadings are as follows:-
The CBI registered a FIR against the petitioner/accused No.2 and her husband M.Selvakumar alleging offences under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 ('PC Act' for short) and Section 109 of the IPC. The complaint against the husband of the petitioner was while he was working as Deputy Director (Research) Training Center, Central Coffee Research Institute, Coffee Research Station, Balehonnur, Chikmagalur District has amassed assets disproportionate to his known sources of income during the alleged check period between 1-01-2005 and 31-03-2013.
4. The allegation against the petitioner is that she had abetted her husband to commit the offence for purchase of many of moveable and immovable properties in her name out of the ill-gotten money of her husband/Accused No.1. The allegations were primarily against accused No.1/husband of the petitioner. After the FIR being registered against both the accused, the CBI conducted an investigation and filed a 5 charge sheet before the Special Court. Before the charge sheet could be filed and charges being framed by the Special Court, accused No.1, husband of the petitioner died on 29-03-2017.
On the death of accused No.1 husband of the petitioner, the charge under the Prevention of Corruption Act stood abated.
As the proceedings against the husband of the petitioner stood abated, what remained was the allegation of abetment against the petitioner as obtaining under Section 109 of the IPC.
5. On the ground that the principal offence against the principal offender having abated, the petitioner files an application before the Special Judge seeking her discharge from the case on the ground that abetment though is a standalone offence it cannot be continued against the petitioner in the light of the principal offender having died and the proceedings against him having abated. The offence under the Prevention of Corruption Act cannot be proved against accused No.1 having abated and such offence cannot be taken forward was the ground on which a discharge application, as stated hereinabove, was filed. The discharge application is 6 disposed of by a strange order dated 6-06-2018. The Special Court accepts that the offence under the PC Act cannot be proved against the principal offender and when that cannot be proved abetting of offence by the petitioner to the husband for amassing wealth to purchase the property cannot stand.
Holding thus, the Special Court rejects the application seeking discharge under Section 239 of the Cr.P.C. but directs charges shall be framed against the petitioner/accused No.2 for offences punishable under Section 13(1)(e) read with Section 13(2) of the PC Act. In an application for discharge, the petitioner suffers an order of additional charge. The petitioner calls in question this order passed by the Special Court in Writ Petition No.33084 of 2018.
6. During the pendency of this writ petition, the CBI also files companion criminal petition calling in question the very same order of the Special Court. The ground on which the CBI prefers the criminal petition is that the offence of abetment against the petitioner/accused No.2 could not have been quashed and a direction to discharge the petitioner under Section 13(1)(e) and 13(2) would not have been made. It is 7 their case that the offence under Section 109 of the IPC is a standalone offence and need not depend on the outcome of the proceedings against the principal offender where the principal offender is acquitted or has died would not make any difference for the allegation of offence punishable under Section 109 of the IPC. Therefore, both these cases are heard together.
7. Heard Sri P.N. Manmohan, learned Advocate for the accused No.2, Sri Prasanna Kumar, learned Special Public Prosecutor for complainant-CBI, and Sri M.Vinod Kumar, learned Advocate for respondent No.2.
8. The learned counsel appearing for the petitioner/ accused No.2 Sri P.N. Manmohan would contend that once the principal offender i.e., the husband of the petitioner died, the offence under Section 13(1)(e) read with Section 13(2) cannot be driven home and proceedings will have to be declared to have abated. The offence against the petitioner was under Section 109 IPC. If the act to which the petitioner has abetted itself cannot be proved, the question of continuing the trial would result in miscarriage of justice. He 8 would place reliance on various judgments rendered by the Apex Court and other constitutional Courts to buttress his submission. On the other hand, the learned Special Public Prosecutor Sri P.Prasanna Kumar appearing for the CBI would contend that the order of the Special Court is erroneous and the CBI is aggrieved by taking away the offence of abetment against the petitioner. It is his further submission that the offence of abetment was always available and it is only on that ground the CBI is aggrieved by the order of the Special Court. It is the categorical case of the CBI that it want the offence under Section 109 of the IPC to be retained and it is only for that purpose the petition is preferred and would also place reliance upon several judgments of the Apex Court and other constitutional Courts to bring home the point canvassed.
9. I have given my anxious consideration to the submissions made by the respective learned counsel and perused the material on record.
10. The facts narrated hereinabove not being in dispute are not reiterated. The issue that falls for my consideration in 9 the subject lis is whether the proceedings against accused No.1, husband of the petitioner having abated on account of his death, would it not obliterate the offence of abetment under Section 109 of the IPC against the petitioner and consequently the proceedings have to be quashed. Accused No.1 M.Selvakumar who died on 29-03-2017 was charged for offence under Section 13(1)(e) read with Section 13(2) of the PC Act. The petitioner was charged with abetting such offence under Section 109 of the IPC. There was no charge under the PC Act against the petitioner. Section 13(1)(e) read with Section 13(2) of the PC Act read as follows:
"13. Criminal misconduct by a public servant.--(1) A public servant is said to commit the offence of criminal misconduct,--
... ... ...
(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.
(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a 10 term which shall be not less than four years but which may extend to ten years and shall also be liable to fine."
The offence alleged was that accused No.1 husband had amassed assets disproportionate to his known sources of income during the period between 01-01-2005 and 31-03-2013. It is during this period the petitioner is alleged to have abetted her husband. On the death of accused No.1/husband, the petitioner filed application seeking discharge on several grounds. The Special Judge while declining to discharge the petitioner directs the CBI to charge the petitioner for offence punishable under Section 13(1)(e) read with Section 13(2) of the PC Act. It is now necessary to consider the correctness of the impugned order and the fact whether the proceedings can continue against the petitioner for the offence of abetment. To consider this issue, it is germane to notice the line of law on the point in the judgments rendered by the Apex Court and other High Courts. The Apex Court in the case of JAMUNA SINGH v.
STATE OF BIHAR1 had held as follows:
1AIR 1967 (1) SCR 469 11 "9. 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 case of Faguna Kanta Nath [1959 Supp 2 SCR 15] lays this down. The observations of this Court in that case, at p. 7, bring out clearly the distinction in the case of persons instigating another or engaging in conspiracy with another on the one hand and that of a person aiding the person in committing a certain offence. The observations are:
"It is not the prosecution case that the appellant abetted the offence by instigating Khalilur Rahman to demand the illegal gratification; nor has the prosecution set up or proved a case of conspiracy between the appellant and Khalilur Rahman for the commission of an offence under Section 161. On the findings of the Court the appellant received the money for and on behalf of Khalilur Rahman and the evidence of the complainant is that Khalilur Rahman had asked him to hand over the money to the appellant. If Khalilur Rahman is acquitted and therefore the offence under Section 161 is held not to have been committed, then in this case no question of intentionally aiding by an act or omission the commission of the offence arises."
(Emphasis supplied) The Apex Court in the case of JAMUNA SINGH holds that a person abetting an offence by intentionally aiding another to commit that offence, the charge of abetment against such abettor would fall, if the person alleged to have committed the offence is acquitted of the offence. The Apex Court also holds that if it was a case of conspiracy it would have been a different circumstance.
1211. Later, the Apex Court in the case of KEHER SINGH v. STATE (DELHI ADMINISRTRATION)2 deals with the assassination of the then Prime Minister and has held as follows:
"260. The concept of criminal conspiracy will be dealt with in detail a little later. For the present, it may be sufficient to state that the gist of the offence of criminal conspiracy created under Section 120-A is a bare agreement to commit an offence. It has been made punishable under Section 120-B. The offence of abetment created under the second clause of Section 107 requires that there must be something more than a mere conspiracy. There must be some act or illegal omission in pursuance of that conspiracy. That would be evident by the wordings of Section 107 (Secondly):
"engages in any conspiracy . . . for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy. . .". The punishments for these two categories of crimes are also quite different. Section 109 IPC is concerned only with the punishment of abetments for which no express provision is made under the Penal Code, 1860. A charge under Section 109 should, therefore, be along with some other substantive offence committed in consequence of abetment. The offence of criminal conspiracy is, on the other hand, an independent offence. It is made punishable under Section 120-B for which a charge under Section 109 IPC is unnecessary and indeed, inappropriate. The following observation of Das, J., in Pramatha Nath Taluqdar v. Saroj Ranjan Sarkar [(1962) Supp 2 SCR 297, 320] also supports my view: (SCR p. 320) "Put very briefly, the distinction between the offence of abetment under the second clause of Section 107 and that of criminal conspiracy under Section 120-A is this. In the former offence 2 (1988) 3 SCC 609 13 a mere combination of persons or agreement between them is not enough. An act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for; in the latter offence the mere agreement is enough, if the agreement is to commit an offence.
So far as abetment by conspiracy is concerned the abettor will be liable to punishment under varying circumstances detailed in Sections 108 to 117. It is unnecessary to detail those circumstances for the present case. For the offence of criminal conspiracy it is punishable under Section 120-B."
The Apex Court holds that the offence of criminal conspiracy is an independent offence. It is made punishable under Section 120B and for a charge under Section 109 IPC the act or omission must take place in pursuance of such conspiracy.
Abetment by conspiracy will be liable for punishment under varying circumstances detailed under Sections 108 to 117 of the IPC.
12. The Apex Court in a recent judgment in the case of U.SUBHADRAMMA v. STATE OF A.P. - (2016) 7 SCC 797 deprecate the action of the competent criminal Court to have conducted the trial on the ground that the charges are already framed against the accused. It is held that once the 14 accused dies there cannot be an order against a dead person.
Criminal Court cannot continue proceedings against dead person and finding him guilty is held by the Apex Court as unsustainable.
13. Long before the judgment in the case of Subhadramma, the Apex Court in the case of STATE OF MAHARASHTRA v. EKNATH YESHWANT PAGAR - (1981) 2 SCC 299 where the main accused had died and the second accused was only an abettor held that since the appeal abated against the main accused on his death, the proceedings against the abettor is rendered infructuous. Again the Apex Court in the case of HARADHAN CHAKRABARTY(EX-SEPOY) v. UNION OF INDIA3 holds as follows:
"6. In Faguna Kanta Nath case [1959 Supp 2 SCR 1: AIR 1959 SC 673: 1959 Cri LJ 917] the appellant was tried for an offence under Section 165-A of the Penal Code, 1860 for having abetted the commission of an offence by an officer. The said officer was acquitted on the ground that no offence under Section 161 was committed. Consequently, the court held that appellant's conviction for the offence of abetment was not maintainable.3
(1990) 2 SCC 143 15
7. This case is referred to in Jamuna Singh case [AIR 1967 SC 553: 1967 Cri LJ 541] and it is held that: (AIR headnote) "[I]t 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 abetment was made .... 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. 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."
8. Madan Raj Bhandari [(1969) 2 SCC 385: (1970) 1 SCR 688] is a case where the appellant was charged with having abetted one Mst Radha in causing miscarriage to a woman and that Mst Radha was acquitted but the appellant was convicted. This Court referred to the principle laid down in Faguna Kanta Nath case [1959 Supp 2 SCR 1: AIR 1959 SC 673: 1959 Cri LJ 917] and held that (SCR headnote) "the facts of the present case fell within the rule that a charge of abetment fails ordinarily when the substantive offence is not established against the principal offender"
(emphasis in original). It may not be necessary to multiply the discussions on this aspect.
9. Having examined the facts in the instant case, we are of the view that the ratio laid down in Faguna Kanta Nath case [1959 Supp 2 SCR 1:
AIR 1959 SC 673: 1959 Cri LJ 917] and later followed in Madan Raj Bhandari case [(1969) 2 SCC 385: (1970) 1 SCR 688] is attracted. The 16 petitioner was charged with the offence of abetment by conspiracy of the commission of the offence of theft by Major Trilok Chand. The High Court of Allahabad has clearly held that there was no evidence that Major Trilok Chand has committed the theft; therefore, unless the substantive offence against the principal offender is established, the question of abettor being held guilty under these circumstances does not arise. The petitioner is alleged to have entered into a conspiracy along with eight others and abetted the commission of the offence. All the other alleged abettors are acquitted and the principal offender Major Trilok Chand is also acquitted and the petitioner alone remains in the picture as one having abetted the offence by entering into conspiracy. It is axiomatic that there cannot be a conspiracy of one. In Topandas v. State of Bombay [(1955) 2 SCR 881: AIR 1956 SC 33: 1956 Cri LJ 138] it was held that (SCR head note) "two or more persons must be parties to such an agreement and one person alone can never be held guilty of criminal conspiracy for the simple reason that one cannot conspire with oneself".
(Emphasis supplied) The finding of the Apex Court is that a charge of abetment ordinarily falls when an offence is not established against the principal offender. It is germane to notice the judgment of the High Court of Delhi in the case of KARTONGEN KEM OCH FORVALTNIHA AB v. STATE THROUGH CBI4 wherein it is held as follows:
42004 SCC Online Delhi 65 17 "94. Once it is found that charge of conspiracy against the public servants cannot stand nor can be proved the question of proving the charge of abetment against the petitioners and even other players in this game does not arise as the genesis of the charge against them is charge against the public servants.
Thus, in the absence of public servants against whom main charge of conspiracy was made, charge of abetment of conspiracy with public servants to cheat the Govt. of India and misuse of official position by public servants and taking bribe by public servants for awarding the contract to M/s A.B. Bofors against the intermediary or the petitioners who are not public servants can neither be framed nor subjected to trial."
(Emphasis supplied) When the charge of conspiracy cannot be proved against the main offender, the charge of abetment to commit such conspiracy cannot be driven home is what the High Court of Delhi holds.
14. It is now germane to notice the subsequent developments in law on the very issue. The Madhya Pradesh High Court in the case of PANKAJ PATHAK v. STATE OF M.P.5 -considering the very same issue has held as follows:
"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 v. State of Assam - AIR 1959 SC 673 has categorically held that under the Indian Law for an offence of abetment it is 5 ILR 2013 MP 503 18 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 v. State of Bihar - AIR 1967 SC 553 has reiterated that it cannot be held in law that the 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 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 Penal Code, 1860 has been framed against them. In P. Nallammal (supra) the Supreme Court has clearly held that a non-public servant car 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 Penal Code, 1860 read with sections 13(1)(e) and 13(2) of the Act and section 471 of the 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."
(Emphasis supplied) 19 The offence alleged therein was under Section 109 and 471 of the IPC. Section 471 though deals with a forged document being used as genuine the independent offence along with abetment had to be proved. The Division Bench holds that death of principal offender during the trial who had been charged of offence under Section 13(1)(e) and 13(2) of the Act who had deposited fake receipts in different accounts and the charge of abetment against the surviving member abetting such forged receipts cannot be held to be abetted is what is held by the Division Bench.
15. It is further germane to notice the Division Bench judgment of the High Court of Orissa answering an identical issue. The Division Bench was considering a charge against two of them. The principal offender was charged with offences punishable under Section 13(1)(e) read with 13(2) of the Prevention of Corruption Act and against the second it was Section 109 of the IPC. The accused therein were husband and wife. Against the husband it was the offence punishable under Section 13(1)(e) read with 13(2) and against the wife it was Section 109 IPC. The husband - public servant died and 20 the case was abated against him. The wife files an application before the Special Court that criminal case cannot be continued against her in view of the death of her husband, the main accused. The Special Court therein had held that notwithstanding the death of the main offender, the case against the abettor would still continue. The Division Bench affirming the view of the Special Court in the case of ARATI SAHOO @ BEHERA v. STATE OF ORISSA6, holds as follows:-
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.
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- 6 CRL.P No.1391 of 2018 decided on 25-02-2019 21 2018. 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, the case Wakil Yadav and another v. State of Bihar: 2001 SCC Crl. 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 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 22 proceeding against the petitioner under the Special Courts Act, 1979.
10. Hence, this CRLMP filed under Articles 226 and 227 of the Constitution of India challenging the impugned order dated 09-08-2018 passed by the learned Special Judge, Special Court, Cuttack in T.R.Case No.15 of 2018 is dismissed being devoid of any merit."
The Division Bench of High Court of Orrissa has considered the very point in issue. Long before the judgment of the Division Bench in the case of R.P.SAKUR, a learned single Judge of the Bombay High Court in the case of SMT.
MAUSHAMI AMARNATH BATABYAL v. THE STATE OF MAHARASHTRA7 notice the facts obtaining in the case therein which reads as follows:
"5. The learned Public Prosecutor, on the other hand, has supported the order passed by the Special Judge, which is impugned in this Revision Application. He submits that the limited question that requires to be considered in the present Revision Application is to examine the correctness of the view taken by the Special Judge. No more and no less. In so far as the argument pressed into service on behalf of the Applicant, contends the learned Public Prosecutor, the same is ill advised. It is submitted that even if the trial as against the principal accused is abated on account of his death, that by itself will not enure to the benefit of the Applicant. According to the learned Public Prosecutor, the Applicant will have to stand the trial on merits. It is submitted that it is well settled that merely because the principal offender is 7 2005 SCC Online Bom. 913 at paragraph 5 23 acquitted, that by itself cannot be the basis to acquit the co-accused who is charged under Section 109 of I.P.C. Though such a view may be generally correct, there are exceptions to that Rule. It is argued that in the present case nothing has been brought on record by the Applicant to show that the prosecution case against the applicant falls under the third clause of Section 107 of I.P.C. and not the first or the second clauses thereof. It is then contended that even if the principal offender has died during the trial that would not absolve the applicant to stand the test of trial, and offer explanation which the principal offender could have offered, if within the knowledge of the Applicant. It is argued that, in a converse case where the principal offender was alive during the trial but failed to satisfactorily account of pecuniary resources or property disproportionate to his known sources of income or that allows the matter to go by default, that would not absolve the co-accused who has been named in the offence on the charge of abetment under Section 109 of I.P.C. or reduce the burden of such co-accused in any manner. Viewed in this perspective, the submission of the Applicant of prejudice being caused to the Applicant because of absence of the co-accused who is the principal offender, is devoid of merits and, in law, cannot be the sole basis to quash the pending criminal prosecution."
(Emphasis supplied) The learned Judge considers and holds that the offence under Section 109 of IPC against the co-offender is maintainable even after the principal offender dies and the said reasoning reads as follows:
"6. Having considered the rival submissions, the first question that needs to be addressed is: whether the trial as against the principal accused (Accused No. 24
1) has abated on account of his death. In the first place, there is no express provision in the Code of Criminal Procedure governing situation under consideration, unlike Section 394 of the Code, which provides for abatement of appeals. However, that provision cannot be invoked in relation to the pending trials or the criminal prosecution before the subordinate Courts as such. Counsel for the Applicant would, however, rely on paragraph 84 of the Criminal Manual issued by the High Court Appellate Side, Bombay, by which the subordinate Courts are also bound. The same reads thus:-
"Where, pending a criminal case, the accused is reported to be dead and the case, therefore, abates, the Court should pass an order recording these facts in the following form:
"Accused reported to be dead."
"Proceeding abate."
and send the papers to the Record room."
Relying on this provision, it is contended that the trial as against the deceased accused No. 1 will have to be treated as abated. Indeed, this provisions is part of Criminal Manual issued by the High Court of Bombay, which in turn has been formulated in exercise of power conferred under Article 227(2)(b) read with Article 227(3) of the Constitution of India. Clause (1) of Article 227 empowers every High Court to have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Clause (2) of Article 227 stipulates that without prejudice to the generality of the foregoing provision, the High Court may, amongst others, make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts. The Criminal Manual of Bombay High Court has been issued after previous approval of the Governor as is required by the proviso to Clause (3) of Article 227. As mentioned earlier, there is no express legislative provision dealing with the situation on hand, as to how criminal trial should be governed in case of death of one or more accused involved in the trial. In that sense, the 25 provision in the form of para.84 of the Criminal Manual cannot be said to be inconsistent, but one which attempts to supplement the provisions of the Criminal Procedure Code. Thus understood, the subordinate Courts will be bound by the said procedure laid down in para.84 of the Criminal Manual.
There is another provision to which reference can be usefully made. Section 477 of the Criminal Procedure Code provides for power of the High Court to make Rules. Clauses (d) of sub-section (1) of Section 477 of the Code empowers the High Court, with the previous approval of the State Government, to make Rules on any other matter which is required to be, or may be, prescribed. In other words the Applicant may be right to the limited extent that the trial as against the principal accused (accused No. 1) has abated after his death.
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 "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 26 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 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 27 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.
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 28 of Maharashtra v. Ramdas S. Kurlekar. In that case the charge against the principal accused was not proved, for which reason 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 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 29 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.
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 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 30 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 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."
(Emphasis supplied) The facts obtaining in the cases before the Division Bench of Orissa High Court and the learned single Judge 31 before the Bombay High Court are identical to the facts obtaining in the case at hand.
16. Even in the judgment of PANKAJ PATHAK rendered by the Division Bench of the Madhya Pradesh High Court, the facts are identical except the added allegation concerning Section 471 of IPC against the husband. Against the wife therein it was only under Section 109 of IPC. The said judgment also would become applicable to the facts of the case at hand. Both the Division Benches and that of the learned single Judge of Bombay High Court in my considered view cover the issue against the petitioner in Writ Petition No.33084 of 2018.
17. The issue now is which Court should try the offence of Section 109 of IPC. Whether it is the Special Court before whom the offences under the Prevention of Corruption Act are to be tried or the competent criminal Court trying the offence of abetment. This issue also need not detain this Court for 32 long as the 3 Judge Bench of the Apex Court in the case of STATE v. NIRMALA8 -has held as follows:
"2. Charge-sheet was filed against the main accused who was a public servant under the provisions of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the P.C.Act') and also against the respondents - accused who are non-public servants under the provisions of Section 109 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC"). All the accused were discharged by the learned trial Court i.e., the court of Special Judge cum-Chief Judicial Magistrate, Salem. Aggrieved, a criminal revision petition was filed before the High Court. In the meantime, the main accused died. The High Court dismissed the revision petition on the ground that the death of the main accused has resulted in abatement of the trial and, therefore, nothing remained for consideration. Aggrieved, the present appeals have been filed.
3. Reliance has been placed by the learned counsel for the appellant on the view expressed by this Court in paragraph 541 in the case of State of Karnataka v. Selvi J.Jayalalitha and others (2017) SCALE 375 to contend that the High Court was wrong in taking the aforesaid view. Having perused the views expressed by this Court in Selvi J.Jayalalitha and others (supra) we are inclined to agree with the submission advanced on behalf of the appellant.
4. However, our attention has been drawn to another judgment/decision of this Court in the case of State through Central Bureau of Investigation, New Delhi v. Jitender Kumar Singh (2014) 11 SCC 724 by the learned counsel for the respondents to contend that this Court, in a situation where charges were yet to be framed, as in the present case, took the view that as trial had not commenced the Special Court under the P.C.Act would not have jurisdiction under Section 4(3) of the P.C. act to try the offences committed under the IPC. In the aforesaid case, this Court had approved the view taken by the Special Court that the proceedings need to be transferred to the competent Court.8
Criminal Appeal No.1647-1650 of 2017 decided on 13-09-2017 33
5. Having considered the decisions of this Court and upon hearing the learned counsel for the parties we are of the view that the death of the main accused does not result in abatement of the trial. The High Court, therefore, would now be under an obligation to consider the order of discharge passed by the learned trial Court on merits. We, therefore, remand the case to the High Court for a re-consideration on the aforesaid issue in the course of which it will be open for the agitating parties to raise any other point including the issue as noticed above with regard to the jurisdiction of the Special Court under Section 4(3) of the P.C.Act in terms of the decision of this Court in Jitender Kumar Singh (supra).
The Apex Court was following the judgment in Jitender Kumar Singh while rendering the aforesaid finding. The Apex Court in the case of STATE v. JITENDER KUMAR SINGH9 -
"3. In Criminal Appeal No. 161 of 2011, we are concerned with the question as to whether the Special Judge has jurisdiction under Section 4(3) of the PC Act to try non-PC offences against private persons when no charges have been framed against public servants for trying a case for offences under Section 3(1) of the PC Act, since they died before framing of charges under the PC Act or IPC?
44. We can visualise a situation where a public servant dies at the fag end of the trial, by that time, several witnesses might have been examined and to hold that the entire trial would be vitiated due to the death of a sole public servant would defeat the entire object and purpose of the PC Act, which is enacted for effective combating of corruption and to expedite cases related to corruption and bribery. The purpose of the PC Act is to make anti-corruption laws more effective in order to expedite the proceedings, provisions for day-to- day trial of cases, transparency with regard to grant of stay and exercise of powers of revision on interlocutory orders have also been provided under the PC Act.9
(2014) 11 SCC 724 34 Consequently, once the power has been exercised by the Special Judge under sub-section (3) of Section 4 of the PC Act to proceed against non-PC offences along with PC offences, the mere fact that the sole public servant dies after the exercise of powers under sub-
section (3) of Section 4, will not divest the jurisdiction of the Special Judge or vitiate the proceedings pending before him.
45. We are, therefore, inclined to allow Criminal Appeal No. 943 of 2008 and set aside the order of the High Court and direct the Special Judge to complete the trial of the cases within a period of six months.
46. We may now examine Criminal Appeal No. 161 of 2011, where the FIR was registered on 2-7-1996 and the charge-sheet was filed before the Special Judge on 14-9-2001 for the offences under Sections 120-B, 420 IPC read with Sections 13(2) and 13(1) of the PC Act. Accused 9 and 10 died even before the charge- sheet was sent to the Special Judge. The charge against the sole public servant under the PC Act could also not be framed since he died on 18-2-2005. The Special Judge also could not frame any charge against non- public servants. As already indicated, under sub- section (3) of Section 4, the Special Judge could try non-PC offences only when "trying any case"
relating to PC offences. In the instant case, no PC offence has been committed by any of the non- public servants so as to fall under Section 3(1) of the PC Act. Consequently, there was no occasion for the Special Judge to try any case relating to the offences under the PC Act against the appellant. The trying of any case under the PC Act against a public servant or a non-public servant, as already indicated, is a sine qua non for exercising powers under sub-section (3) of Section 4 of the PC Act. In the instant case, since no PC offence has been committed by any of the non- public servants and no charges have been framed against the public servant, while he was alive, the 35 Special Judge had no occasion to try any case against any of them under the PC Act, since no charge has been framed prior to the death of the public servant. The jurisdictional fact, as already discussed above, does not exist so far as this appeal is concerned, so as to exercise jurisdiction by the Special Judge to deal with non-PC offences."
(Emphasis supplied) On a coalesce of the judgments of the Apex Court considered hereinabove, what would unmistakably emerge is that death of the husband during trial before the charges are framed will not result in closure of trial against the co-accused, the co-
accused, in the case at hand, who is alleged of abetment under Section 109 of the IPC. The Special Judge for cases arising under different provisions of Prevention of Corruption Act cannot try the subject offence. Therefore, the competent criminal Court of the appropriate jurisdiction will have to try the allegation under Section 109 of the IPC against the wife.
The question that had arisen for consideration is answered in the peculiar facts of this case holding that abatement does not annihilate abetment.
3618. For the aforesaid reasons, I pass the following:
ORDER
(a) Writ Petition No.33084 of 2018 is partly allowed and the order dated 6-06-2018 passed in Special C.C.No.308 of 2015 by the XXXII Additional City Civil & Sessions Judge and Special Judge for CBI cases at Bangalore stands quashed only insofar as it directs the respondent- CBI to register offences punsihable under Section 13(1)(e) r/w 13(2) of the Prevention of Corruption Act, 1988
(b) Criminal Revision Petition No.304 of 2019 filed by the CBI is allowed in part and the order dated 6-
06-2018 passed in Special C.C.No.308 of 2015 by the XXXII Additional City Civil & Sessions Judge and Special Judge for CBI cases at Bangalore stands quashed only insofar as it directs the respondent- CBI to register offences punishable under Section 13(1)(e) r/w 13(2) of the Prevention of Corruption Act, 1988
(c) Challenge to the continuance of trial against the petitioner/accused No.2 for the offence punishable under Section 109 of the IPC is rejected.
(d) The Special Court hearing Spl.C.C.No.308 of 2015 cannot hear the matter and the trial will have to be continued before the competent Criminal Court against accused No.2.
Sd/-
JUDGE bkp