Madras High Court
Durai Murugan vs Deputy Superintendent Of Police on 26 June, 2012
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 26.06.2012 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.13788 of 2012 and M.P.No.1 of 2012 Durai Murugan .. Petitioner Vs. Deputy Superintendent of Police, Vigilance and Anti Corruption, Vellore. .. Respondent This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records in Final opportunity notice in RC.No.249/2011/PUB/HQ, dated 25.04.2012 on the file of the respondent herein and quash the same and to direct the respondent to re-issue the final opportunity notices along with statement of accounts separately for the petitioner and his wife specifying the list of properties found to have been acquired disproportionate to known source of income of the petitioner. For Petitioner : Mr.R.Shanmugasundaram, SC for Mr.A.Saravanan For Respondents : Mr.A.Navaneetha Krishnan, Advocate General assisted by Mr.M.K.Subramanian, Spl.G.P. - - - - ORDER
The petitioner is a member of the legislative Assembly from Katpadi constituency and claims to be the Deputy General Secretary of the Dravida Munnetra Kazhagam (DMK), a registered political party. He was also a former minister during the tenure of the previous Government.
2.The short question that arises for consideration in this writ petition is whether the petitioner should be given one more opportunity by re-issuance of a final opportunity notice in the investigation into the disproportionate Assets case registered against him?
3.The petitioner by a notice dated 11.3.2012 issued by the Deputy Superintendent of Police, Vigilance and Anti Corruption, Vellore, was directed to sent his replies in response to a questionnaire form given on or before 20.3.2012. He was informed that if he did not appear and give his statement or if he expressed his intention not to give any reply, it will be presumed that he has no explanation to offer and further criminal investigation will take place. The petitioner challenging the said notice filed a writ petition before this court in W.P.No.8391 of 2012.
4.This court disposed of the writ petition by an order dated 10.04.2012 after recording the statement made by the learned Public Prosecutor and in paragraphs 11 to 13, it was observed as follows :
"11.....learned Public Prosecutor stated at the bar, that the impugned questionnaire is voluntary and it is for the petitioner either to answer or not to answer it. In the event of the petitioner not answering the questionnaire, no adverse action will be taken and it will be for the Investigating Agency to proceed with the investigation strictly as per the provisions of the Code of Criminal Procedure.
12.In view of the positive stand of the learned Public Prosecutor, the petitioner cannot have any grievance to the impugned questionnaire, as the petitioner has option to ignore it, if so advised.
13.This writ petition is, therefore, disposed of, by recording the statement of learned Public Prosecutor. No costs. Consequently, connected miscellaneous petition is closed."
5.It is pursuant to the said direction, the impugned notice dated 25.4.2012 came to be issued by the respondents asking the petitioner and his wife to account for disproportionate assets and that the notice was labelled as the final opportunity notice. Once again, the petitioner is before this court challenging the said notice in the present writ petition. When the writ petition came up for hearing on 30.5.2012, this court had passed the following interim order :
"It is represented by the learned counsel appearing for the petitioner that time expires today for giving a reply and hence, there shall be an interim order.
However, learned Advocate General, representing the learned Special Government Pleader submits that if an application is given to the respondent, there will not be any opposition to grant extension of time for reply."
Pursuant to the same, the petitioner also gave a reply on 09.05.2012. Notwithstanding the same, the petitioner insisted for a hearing of the main writ petition by this court.
6.On behalf of the respondent, a counter affidavit, dated 29.5.2012 has been filed. In the counter affidavit, it was stated that a FIR was registered against the petitioner and his wife under Section 13(2) read with S.13(1)(e) of the Prevention of Corruption Act, 1988. Only after conducting the preliminary enquiry and having satisfied that there was prima facie materials against the petitioner, the case in Crime No.17 of 2011 was registered. In respect of materials gathered, it is the petitioner who will have to give satisfactory account for the disproportionate assets to the known source of income and it can be done only during trial. The petitioner will have ample opportunities in giving satisfactory accounts during trial. There is no provision of law or otherwise which makes it obligatory on the part of the respondent to give him an opportunity of being heard before the report is filed. Hence it was contended that there was no case for interference at the stage of investigation. Regarding the violation of guidelines not being followed, it was contended that the guidelines have been scrupulously followed. Even otherwise, the guidelines are only directory and not mandatory. The Investigating Officer is not an enquiry officer. Hence the question of invoking the principles of natural justice will not arise. At the stage of investigation, the investigating officer is not deciding any matter except collecting materials available ascertaining whether prima facie case is made out or not.
7.In the impugned order issued to the petitioner, the disproportionate assets are shown as follows :
Statement-I Assets at the commencement of the check period i.e. as on 1.4.2007 2,09,20,523 Statement-II Assets at the end of the check period i.e. as on 31.3.2009 4,63,38,368 Statement-III Income from the known sources of income during the check period i.e., from 1.4.07 to 31.3.09 2,90,04,689 Statement-IV Expenditure during the check period i.e., from 1.4.07 to 31.3.09 1,76,61,018 Statement-V Value of assets acquired during the check period i.e., from 1.4.07 to 31.3.09 2,54,17,845 Statement-VI Likely savings during the check period i.e., from 1.4.07 to 31.3.09 1,13,43,671
8.It was further stated that the petitioner's wife had abetted the petitioner to invest in the unexplained source of income in her name. Therefore, no split statement was provided, but consolidated statement was furnished along with the final opportunity notice. As the petitioner had acquired assets in his name as well as in the name of his wife, proceedings were initiated against both of them.
9.Mr.R.Shanmugasundaram, learned Senior Counsel appearing for the petitioner contended that the attempt made by the respondent in closing the enquiry without giving due opportunity was invalid and in terms of the Prevention of Corruption Act, the initial burden was on the prosecution to establish whether the accused had acquired any property disproportionate to his known source of income. In this context, he placed reliance upon a judgment of the Supreme Court in DSP, Chennai Vs. K.Inbasagaran reported in (2006) 1 SCC 420. But in paragraph 16 of the very same judgment, it was observed as follows :
"16.Therefore, the initial burden was on the prosecution to establish whether the accused has acquired the property disproportionate to his known source of income or not. But at the same time, it has been held in State of M.P. v. Awadh Kishore Gupta7 that the accused has to account satisfactorily for the money received in his hand and satisfy the court that his explanation was worthy of acceptance....."
(Emphasis added)
10.Further that case arose out of the acquittal in the criminal appeal by this court and the Supreme Court had affirmed the order passed by this Court. In this case, the stage for this court to go into the credibility of the materials placed before the trial court is yet to arrive.
11.The learned Senior Counsel also stated that even the proceedings pending before the criminal court can be quashed in a proceedings under Section 482 Cr.P.C. or under Article 226 of the Constitution. For this purpose, he placed reliance upon a judgment of this court in R.Thirugnanasambantham Vs. Central Bureau of Investigation and two others reported in 2008 (1) LW (Crl.) 536. Reliance was placed upon the following passage found in paragraph 19, which reads as follows :
"19.Therefore, it is clear from the aforesaid decisions of the Supreme Court that if a case falls under any of the time tested parameters, laid down in Bhajan Lal's case, the proceedings pending before a criminal Court can certainly be quashed under Article 226 of the Constitution or Section 482 of the Code of Criminal Procedure, in order to prevent the abuse of the process of any Court or otherwise to secure the ends of justice, though while doing so, great care and caution is to be exercised. Hence, I hold that the present writ petition is maintainable, despite the fact that the petitioner has come to Court at a stage when the Special Court has taken cognizance of the final report and had issued summons to the petitioner for the supply of copies and for framing of charges." (Emphasis added) In that case, it must be noted that the investigation was completed and the matter was pending trial before the Special Court for CBI cases. Therefore, there was time enough to see the nature of the complaint as the final report has been filed before the court. Hence that case does not help the case of the petitioner.
12.The learned Senior Counsel thereafter referred to a judgment of this court in G.Malliga, Selvaraj and others Vs. State, represented by the Deputy Superintendent of Police in Criminal Appeal No.79 of 2000, etc., dated 14.09.2006, wherein this court had given the duties of an Investigating Officer in a disproportionate asset cases arising under the Prevention of Corruption Act. In paragraph 26, it was observed as follows :
"26.In a case of this nature, where allegations are made against the public servant that he had assets disproportionate to the known sources of his income, the duty of the Investigating Officer is as follows :
"(i)The Investigating Officer should assess the value of the assets of the public servant immediately prior to the check period with relevance to the tax Returns of the concerned person and also loans and other incomes available to the person and also about the liability of the person prior to the check period.
(ii)The actual income during the check period and the expenditure actually incurred by the public servant should be calculated without any inflation and on a reasonable basis.
(iii)The total income during the check period and assets prior to the check period must be taken together as the total assets of the public servant from which the actual expenditure and amounts saved either by cash or by properties must be deducted from the total amount and see whether there is much disproportion to the known sources of income of the public servant and the assets on his hand. While making the calculation regarding the value of the properties and expenditure a reasonable margin has to be given this way or that way to find out the truth. Such kind or procedure to be adopted only by an unbiased Investigating Officer. There should be no suppression of income or under estimation of the income of the accused or inflation of the expenditure or inflation of the assets of the accused.
(iv)The Investigating Officer should not suppress any of the income, by way of loan or gift while considering the income of the public servant.
(v)Similarly after finding out that there is any disproportionate wealth in the hands of the public servant beyond his known sources of income, the accused must be given an opportunity to explain the same. Failure to give an opportunity to the accused to explain the same is fatal to the prosecution."
It must be noted that the said case arose out of a final judgment of the trial court in a regular criminal appeal.
13.The learned Senior Counsel further referred to a judgment of this court in State, rep by the Dy. Superintendent of Police, Vigilance and Anti Corruption, Cuddalore Detachment Vs. K.Ponmudi and others reported in 2006-2-L.W. (Crl.) 758 for contending that it was not fair on the part of the investigating officer to suppress materials which may be favourable to the accused and in paragraph 24, it was observed as follows :
"24.It is not fair on the part of the Investigating Officer to suppress materials which may be favourable to the accused. The prosecution cannot, at its sweet will and pleasure either choose or suppress materials collected during investigation to suit its convenience to lure the Court to frame charges against the accused......"
But, however as noted from the said judgment, that case also arose out of a criminal revision petition filed by the State against an order of discharge passed by the Special Court.
14.But, however it has to be seen nature of an investigation in a disproportionate assets cases. In this context, it is necessary to refer to certain decisions of the Supreme Court. In K.Veeraswami Vs. Union of India and others reported in (1991) 3 SCC 655, the Supreme Court in paragraph 75 had observed as follows :
"75........Counsel laid great emphasis on the expression for which he cannot satisfactorily account used in clause (e) of Section 5(1) of the Act. He argued that that term means that the public servant is entitled to an opportunity before the Investigating Officer to explain the alleged disproportionality between assets and the known sources of income. The Investigating Officer is required to consider his explanation and the charge-sheet filed by him must contain such averment. The failure to mention that requirement would vitiate the charge-sheet and renders it invalid. This submission, if we may say so, completely overlooks the powers of the Investigating Officer. The Investigating Officer is only required to collect material to find out whether the offence alleged appears to have been committed. In the course of the investigation, he may examine the accused. He may seek his clarification and if necessary he may cross check with him about his known sources of income and assets possessed by him. Indeed, fair investigation requires as rightly stated by Mr A.D. Giri, learned Solicitor General, that the accused should not be kept in darkness. He should be taken into confidence if he is willing to cooperate. But to state that after collection of all material the Investigating Officer must give an opportunity to the accused and call upon him to account for the excess of the assets over the known sources of income and then decide whether the accounting is satisfactory or not, would be elevating the Investigating Officer to the position of an enquiry officer or a judge. The Investigating Officer is not holding an enquiry against the conduct of the public servant or determining the disputed issues regarding the disproportionality between the assets and the income of the accused. He just collects material from all sides and prepares a report which he files in the court as charge-sheet." (Emphasis added)
15.The exact nature of the wealth possessed by an accused and whether the wealth is independently owned by his near relative is an issue which will have to be tried essentially in a trial. In such cases, the burden is upon the public servant to satisfy the court that the excess wealth possessed by him is attributable to known sources. In fact, in a trial under Section 13(1)(e) of the Prevention of Corruption Act, 1988, even a non public servant can be tried in the same trial. In the present case, it is the stand of the investigating officer that the assets shown in the name of the petitioner's wife is also the assets of the petitioner as the wife does not have any independent source.
16.In this context, reference may be made to a judgment of the Supreme Court in P.Nallammal Vs. State rep by the Inspector of Police reported in AIR 1999 SC 2556 = (1999) 6 SCC 559 and in paragraphs 21 to 25, it was observed as follows :
"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 Thirdly.Intentionally aids, by any act or illegal omission, the doing of that thing.
22. For the First clause (i.e. instigation) the following Explanation is added to the section:
Explanation 1.A person who, by wilful misrepresentation, or by wilful 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.
23. 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.
24. 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 vis-a-vis Section 13(1)(e) of the PC 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 his, 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.
25.Such illustrations are apt examples of how the offence under Section 13(1)(e) of the PC Act can be abetted by non-public servants. The only mode of prosecuting such offender is through the trial envisaged in the PC Act."
17.In the present case, the enquiry itself is not complete. Already, the petitioner has been given an opportunity by the earlier writ petition filed by the petitioner in W.P.No.8391 of 2012, dated 10.4.2012 as well as by an interim order passed by this court in M.P.No.1 of 2012, dated 30.5.2012 as noted already. The petitioner also pursuant to the same had submitted his reply on 09.05.2012. Therefore, whether at this stage the petitioner should have been given one more opportunity to forestall the investigation cannot be countenanced.
18.In this context, it is necessary to refer to a judgment of the Supreme Court in Union of India and another Vs. W.N.Chadha reported in 1993 Supp (4) SCC 260, wherein the Supreme Court held that the accused has no right to have any say as regard to the manner and method of investigation and in paragraph 92, it was observed as follows :
"92.More so, the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under Section 173(2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued under Section 204 of the Code, as the case may be. Even in cases where cognizance of an offence is taken on a complaint notwithstanding that the said offence is triable by a Magistrate or triable exclusively by the Court of Sessions, the accused has no right to have participation till the process is issued. In case the issue of process is postponed as contemplated under Section 202 of the Code, the accused may attend the subsequent inquiry but cannot participate. There are various judicial pronouncements to this effect but we feel that it is not necessary to recapitulate those decisions. At the same time, we would like to point out that there are certain provisions under the Code empowering the Magistrate to give an opportunity of being heard under certain specified circumstances." (Emphasis added)
19.Further reference may be made to a judgment of the Supreme Court in State of Maharashtra Vs. Ishwar Piraji Kalpatri and others reported in (1996) 1 SCC 542 and in paragraphs 15 and 16, it was observed as follows :
"15.In our opinion, there is a complete misreading of the aforesaid provision by the High Court. It is, no doubt true that a satisfactory explanation was required to be given by the delinquent officer. But this opportunity is only to be given during the course of the trial. It is no doubt true that evidence had to be gathered and a prima facie opinion found that the provisions of Section 5(1)(e) of the Act are attracted before a first information report was lodged. During the course of gathering of the material, it does happen that the officer concerned or other person may be questioned or other queries made. For the formation of a prima facie opinion that an officer may be guilty of criminal misconduct leading to the filing of the first information report, there is no provision in law or otherwise which makes it obligatory of an opportunity of being heard to be given to a person against whom the report is to be lodged. That such satisfactory account had to be rendered before a court is also borne out from the judgment of this Court in Veeraswami case1 where referring to Section 5(1)(e) of the Act at page 713 of the said judgment, it was observed as follows: (SCC pp. 713-14, para 72) Clause (e) creates a statutory offence which must be proved by the prosecution. It is for the prosecution to prove that the accused or any person on his behalf, has been in possession of pecuniary resources or property disproportionate to his known sources of income. When that onus is discharged by the prosecution, it is for the accused to account satisfactorily for the disproportionality of the properties possessed by him. The section makes available statutory defence which must be proved by the accused. It is a restricted defence that is accorded to the accused to account for the disproportionality of the assets over the income. But the legal burden of proof placed on the accused is not so onerous as that of the prosecution. However, it is just not throwing some doubt on the prosecution version. The legislature has advisedly used the expression satisfactorily account. The emphasis must be on the word satisfactorily. That means the accused has to satisfy the court that his explanation is worthy of acceptance. The burden of proof placed on the accused is an evidential burden though not a persuasive burden. The accused however, could discharge that burden of proof on the balance of probabilities either from the evidence of the prosecution and/or evidence from the defence. (emphasis added)
16.The aforesaid passage leaves no manner of doubt that the opportunity which is to be afforded to the delinquent officer under Section 5(1)(e) of the Act of satisfactorily explaining about his assets and resources is before the court when the trial commences and not at an earlier stage. The conclusion arrived at by the learned Single Judge that principles of natural justice had been violated, as no opportunity was given before the registration of the case, is clearly unwarranted and contrary to the aforesaid observations of this Court in K. Veeraswami case1."
(Emphasis added) As noted already, the said case referred to K.Veeraswami's case (cited supra) and there is no violation of principles of natural justice.
20.Reference may also be made to a judgment of the Supreme Court in Shashikant Vs. Central Bureau of Investigation and others reported in (2007) 1 SCC 630 and in paragraph 30, it was observed as follows :
"30.The first respondent is a statutory authority. It has a statutory duty to carry out investigation in accordance with law. Ordinarily, it is not within the province of the court to direct the investigative agency to carry out investigation in a particular manner. A writ court ordinarily again would not interfere with the functioning of an investigative agency. Only in exceptional cases, it may do so. No such case has been made out by the appellant herein. The nature of relief prayed for in the writ petition also is beyond the domain of a writ court save and except, as indicated hereinbefore, an exceptional case is made out."
(Emphasis added)
21.It is also significant to note that the Supreme Court in State of Bihar and another Vs. J.A.C. Saldanha and others reported in AIR 1980 SC 326 = (1980) 1 SCC 554 held that the investigation of an offence is the field exclusively reserved for the executive through the police department and in paragraph 25, it was observed as follows :
"25.There is a clear-cut and well demarcated sphere of activity in the field of crime detection and crime punishment. Investigation of an offence is the field exclusively reserved for the executive through the police department the superintendence over which vests in the State Government. The executive which is charged with a duty to keep vigilance over law and order situation is obliged to prevent crime and if an offence is alleged to have been committed it is its bounded duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the court requesting the court to take cognizance of the offence under Section 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the court the police function of investigation comes to an end subject to the provision contained in Section 173(8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so, whether by the person or persons charged with the crime by the police in its report to the court, and to award adequate punishment according to law for the offence proved to the satisfaction of the court. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate." (Emphasis added)
22.In the light of the above factual matrix and legal precedents quoted, it is not a fit case where any interference is called for. Hence the writ petition will stand dismissed. No costs. Consequently connected miscellaneous petition stands closed.
26.06.2012 Index : Yes Internet : Yes vvk To Deputy Superintendent of Police, Vigilance and Anti Corruption, Vellore.
K.CHANDRU, J.
vvk ORDER IN W.P.No.13788 of 2012 26.06.2012