Delhi High Court
M.M. Singh vs State Through Cbi on 3 September, 2009
Author: G.S.Sistani
Bench: G.S.Sistani
14.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.REV.P. 834/2005
Judgment delivered on : September 3rd , 2009
M.M. Singh ..... Petitioner
Through : Mr. Sandeep Sethi, Sr. Adv. with
Mr. Santosh Mishra, Adv.
versus
STATE through CBI ..... Respondent
Through : Mr. Harish Gulati and Mr. A.
Malhotra, Advs.
[2] CRL.REV.P. 848-49/2005
R.P. Singh & Another ..... Petitioners
Through : Mr. Sandeep Sethi, Sr. Adv. with
Mr. Santosh Mishra, Adv.
versus
STATE through CBI ..... Respondent
Through : Mr. Harish Gulati and Mr. A.
Malhotra, Advs.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
1. Whether reporters of local papers may be allowed to see the
Judgment ? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the Judgment should be reported in the Digest? Yes
G.S.SISTANI, J.
1. Both the petitions are directed against a common order dated
17.8.20005 and order of charge dated 29.8.2005, passed by the
learned Special Judge in FIR No.RC-4(A)/98/ACU VIII, under
Section 109 of the Indian Penal Code 1860, and Section 13(2)
read with Section 13(1)(e)of the Prevention of Corruption Act.
Both the petitions were argued together and with the consent of
counsel for the parties, the same are being disposed of by this
CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 1 of 32
common order.
2. The necessary facts for the disposal of the present petitions are
that: a case was registered against the petitioners under Section
13(2) read with Section 13 (1)(e) of the Prevention of Corruption
Act. It was alleged that Shri M.M.Singh (petitioner in
Crl.Rev.P.No.834/2005), while working as Senior Deputy Director
(Quality), corporate office of Steel Authority of India Ltd. has
amassed assets worth over Rs.98.0 lacs during the period of
January, 1990 to December, 1995, and the same are
disproportionate to his known sources of income. During the
course of investigation, Shri R.P.Singh and Shri Sharat Chandra
Singh (petitioners in Crl.Rev.P.No.848-49/2005), father and
brother (respectively) of Shri M.M.Singh, were also made
accused persons, as according to the investigating officer,
movable and immovable properties had also been bought in
their names. It was alleged that the total income during the
check period of the petitioner (Shri M.M.Singh) and other
individuals from salary, agricultural land, pensions and from
other investments, came to Rs.59,17,820.63. The total
expenditure of the petitioner and other members of the family
was calculated as Rs.2,76,045/-. The assets both movable and
immovable have been shown as amounting to
Rs.1,28,63,942.58/-. Accordingly, assets disproportionate to the
income have been calculated to the tune of Rs.72,22,166.95/0.
Learned trial Court in pursuance of the charge-sheet filed by the
CBI, initiated proceedings against the accused persons. And
simultaneously, a departmental enquiry was initiated against the
CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 2 of 32
petitioner (Shri M.M.Singh). Vide order dated 17.8.20005, the
learned Special Judge of the criminal Court, held that a prima
facie case was made out against the three accused persons
(petitioners herein) and vide order dated 29.8.2005 charges
were framed against the three accused persons.
3. It is contended by learned senior counsel for the petitioners that
an exhaustive inquiry was conducted by the Investigating officer
in the departmental inquiry and the investigating officer in the
CBI had also appeared as a management witness. After a
detailed inquiry, Disciplinary Authority vide order dated 2.7.2004
exonerated the petitioner (Shri M.M.Singh) of the charges. It is
submitted that the impugned order dated 17.8.2005 and order
on charge dated 29.8.2005 are perverse and suffer from non-
application of mind and irregularities. It is contended that while
framing charges against the petitioners, learned trial court has
failed to consider or appreciate the settled proposition of law
that framing of charge is a very serious matter and should not
be done lightly or as a matter of course.
4. It is next contended by learned senior counsel for the petitioners
that the trial court may frame charge only in the discerning few
cases where on the basis of the material adduced by the
prosecution there arises in the opinion of the trial court ―grave
suspicion‖ of the complicity of the accused. The trial court can
only determine the grave suspicion on the basis of the material
on record and by application of mind. The court is duty bound to
scrutinize the material on record and then to determine whether
or not there is a strong possibility of conviction of the accused at
CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 3 of 32
the conclusion of trial. It is contended that in this case, the trial
court has failed to apply its mind and without appreciating the
material on record, has framed the charges. It is contended that
the trial court fell in serious error in routinely clubbing the assets
of all the accused persons and then arriving at the conclusion of
disproportionate assets.
5. Learned senior counsel for the petitioners has strongly urged
before this Court that the trial court failed to appreciate in the
right perspective the exoneration of petitioner (Shri M.M.Singh)
by the inquiry officer in the departmental proceedings. It is
stated that the trial court has erred in discharging the report of
the inquiry officer on the plea that the charges framed in the
departmental proceedings are different from the charges framed
in the criminal prosecution. He further submits that the trial
court has failed to appreciate the essence of the finding of the
inquiry officer and it is not enough that the charges are simply
compared. Result of the finding of the inquiry officer would show
that he has gone into and adjudicated the matter for purchase of
assets by the petitioners vis-a-vis, the income and assets in the
hands of all other accused. Therefore, the said finding has
substantial bearing in determining whether or not charges are to
framed against the petitioners.
6. It is strongly urged that the standard of proof required in
departmental proceedings which are of civil nature, is far lower
than the standard required in criminal proceedings. The
standard of proof in departmental proceedings is preponderance
of possibilities, while in criminal prosecution it is 'beyond
CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 4 of 32
reasonable doubt'. It is trite law that finding of a civil
proceedings is binding on the criminal proceedings and not vice-
versa. In support of his plea learned counsel has relied upon the
decision in the case of P.S. Rajya Vs. State of Bihar, reported
at (1996) 9 SCC 1, in which the question that came up for
consideration before the Apex Court was whether it was justified
in prosecuting the appellant under section 5(2) read with section
5(i)(e) of the Prevention of Corruption Act, 1947,
notwithstanding the fact that on identical charges, the appellant
had been exonerated in the departmental proceedings. It will be
useful to reproduce relevant paragraphs:
―17. At the outset we may point out that the learned
Counsel for the respondent could not but accept the
position that the standard of proof required to establish the
guilt in a criminal case is far higher than the standard of
proof required to establish the guilt in the departmental
proceedings. He also accepted that in the present case, the
charge in the departmental proceedings and in the criminal
proceedings is one and the same. He did not dispute the
findings rendered in the departmental proceedings and the
ultimate result of it. On these premises, if we proceed
further then there is no difficulty in accepting the case of
the appellant. For if the charge which is identical could not
be established in a departmental proceedings and in view
of the admitted discrepancies in the reports submitted by
the valuers one wonders what is there further to proceed
against the appellant in criminal proceedings. In this
context, we can usefully extract certain relevant portions
from the report of the Central Vigilance Commission on this
aspect.
―Neither the prosecution nor the defence has
produced the author of various reports to confirm the
valuation. The documents cited in the list of
documents is a report signed by two engineers
namely S/Sh. S.N. Jha and D.N. Mukherjee whereas
the document brought on record (Ex. S-20) has been
signed by three engineers. There is also difference in
the estimated value of the property in the statement
of imputation and the report. The document at Ex. S-
20 has been signed by three engineers and the
property has been valued at Rs. 4,85,000 for the
CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 5 of 32
ground floor and Rs. 2,55,600 for the second floor. A
total of this comes to Rs. 7,40,900 which is totally
different from the figure of Rs. 7,69,800 indicated in
the statement of imputation. None of the engineers
who prepared the valuation report though cited as
prosecution witnesses appeared during the course of
enquiry. This supports the defence argument that the
authenticity of this document is in serious doubts. It
is a fact that the Income Tax Authorities got this
property evaluated by S/Sh. S.N. Jha and Vasudev
and as per this report at pages 50 to 63 they
estimated the properly at Rs. 4,57,600 including the
cost of land Rs. 1,82,000 for ground and manezaine
floor plus Rs. 2,55,600 for first floor and Rs. 20,000
for cost of land). Thus both the engineers who
prepared the valuation report for income tax
purposes also prepared the report for the CBI and
there is no indication in the subsequent report as to
why there is a difference in the value of the properly.
A perusal of these two reports reveals that there is
difference in the specification of the work. The
valuation report prepared by Sh. S.N. Jha for ground
floor for income tax purposes clearly states that the
structure was having "RCC Pillars at places, brick
work in cement mortar, RCC lintal, 60 cm walls, 9
inch floor height, 17.6, 8.00, 8.00 inch" but in the
report for CBI which was also prepared by him the
description is "RCC framed structure open warranted
on three sides in the ground floor. Similarly, for the
first floor it is written in the report as "partly framed
structure and partly load being walls, floor heights
3.20 mm. Further Sh. S.N. Jha on page 54 of Ex. D-l
had adopted a rate of Rs. 290 per sq. mtr. for ground
floor and adding for extra height he had estimated
ground floor including mezzanine floor at Rs.
2,02,600. But for the report at Ex. S-20 the rate has
been raised to 365 per sq. mtr. There is no
explanation for this increase of rate by Rs. 75 per
mtr. It is also observed that for the updating of the
cost of index 5-% was added to the rate of Rs. 290/as
per page 55 of Ex. D-1 by Sh. S.N. Jha but this has
been raised to 97% as an escalation to the cost of
index in Ex. S-20 without explaining or giving the
reasons therefore. It is surprising that same set of
engineers have adopted different standard for
evaluating the same properly at different occasions.
Obviously, either of the report is false and it was for
the prosecution to suitably explain it. In the absence
of it the only inference to be drawn is that report at
Ex-S-20 is not authentic. Since the same set of
engineers have done the evaluation earlier and if
subsequently they felt that there was some error in
the earlier report, they should have explained
CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 6 of 32
detailed reasons either in the report itself or during
the course of enquiry. Therefore, Ex. S-20 is not
reliable.
23. Even though all these facts including the Report
of the Central Vigilance Commission were brought to
the notice of the High Court, unfortunately, the High
Court took a view that the issues raised had to be
gone into in the final proceedings and the Report of
the Central Vigilance Commission, exonerating the
appellant of the same charge in departmental
proceedings would not conclude the criminal case
against the appellant. We have already held that for
the reasons given, on the peculiar facts of this case,
the criminal proceedings initialed against the
appellant cannot be pursued. Therefore, we do not
agree with the view taken by the High Court as
stated above. These are the reasons for our order
dated 27.3.1996 for allowing the appeal and
quashing the impugned criminal proceedings and
giving consequential reliefs.‖
7. It is next submitted that there is also no meeting of minds
between the parties, to commit the criminal offence inasmuch
as, the father and brother are self-earning members. Father of
the petitioner is stated to be a retired school teacher and is
getting a pension of Rs.2000/- per month. The brother is doing
cultivation on the ancestral agricultural land, which would show
that they had their own source of income and all the
transactions were from their bank account. Both the father and
the brother are income-tax assesses and had filed their income-
tax returns separately. The father and brother have declared
their income through VDIS Scheme in the year 1997, before the
Registration of the case. It is submitted that once the father and
the brother have satisfactorily explained that income was
derived by them through agricultural resource as well as the fact
that the father of the petitioner (Shri M.M.Singh) is a retired
school teacher, and has an independent source of income and
CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 7 of 32
since there is no material on record to connect the father and
brother of the petitioner to the alleged offence, the petitioners
should be acquitted from the charges framed. In support of his
contention, learned counsel for the petitioners has placed
reliance on the case of DSP, Chennai, Vs. K. Inbasagaran
reported at (2006) 1 SCC 420 wherein the accused was
acquitted since in his part, he had satisfactorily established that
the monies and assets recovered belonged to his wife, which she
had amassed from the business run by her and there was no
evidence that the assets belonged to the accused.
8. Per contra, present petitions are opposed by learned counsel for
the CBI on the ground that the material on record amply points
out the culpability of the petitioners. Learned counsel for the CBI
submits that during the course of investigation, it was found that
the father of the accused was a retired teacher and was also
looking after the agricultural land and the brother was
unemployed and after completing his Ph.D. in Maithily language,
he was assisting his father in agriculture and the number of
movable and immovable properties purchased in their names
were beyond their probable income. Investigation also revealed
that all the three persons entered into a conspiracy and the
petitioner (Shri M.M.Singh) being a public servant purchased the
properties in the name of his father and brother. As per the CBI,
the petitioner had drawn a net salary of Rs.3,25,821/- during the
check period. The agricultural income from all the properties
was to the tune of Rs.13,85,070/- i.e. Rs.2,30,845/- per year. The
total income of the accused during the check period was
CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 8 of 32
Rs.59,17,820.63. The total expenditure incurred by the
petitioner during the check period was Rs.2,76,045/-. The
petitioners had movable assets amounting to
Rs.1,10,32,267.10/-. This figure has been derived after
deducting the bank balances in the beginning of check period
which was Rs.1,16,139.29. The petitioners had immovable
assets amounting to Rs.18,31,675.48. It is submitted that during
the investigation, the Investigating Officer had also collected the
evidence about the income of each member of the family and
the income from the land and properties of the family. It was
found that the brother had no particular source of income and he
was only assisting his father in agricultural activities. The father
was a pensioner and was getting pension of Rs.2,000/- per
month. He submits that in view of the fact that the family
members in whose name huge assets are found, are dependent
on the petitioner and they have no sufficient income to acquire
the properties, all these factors and circumstance clearly show a
conspiracy between the petitioners and other accused persons.
Learned counsel relies upon the case of Nallamal Vs. State of
Tamil Nadu, reported at 1999 (Crl.) Journal, 3967, wherein it
has been laid down that even a non-public servant can be
prosecuted for an offence of disproportionate assets if he abets
the said offence by a public servant and keeps the property in
his name, shielding the public servant from the clutches of law.
It is further submitted that in this case, all the petitioners are
residing in the same house and they have a common ration card,
which itself would lead to a strong circumstance to infer meeting
CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 9 of 32
of minds and an agreement to commit the offence. Learned
counsel also submits that Chandra Shekhar (CW-3) has revealed
that all of the investment of the petitioner (Shri M.M.Singh) and
his family members were made by him, using the demand draft
sent by the petitioner (Shri M.M.Singh), the main accused. Even
otherwise, the father and brother have no sufficient income and
they were dependent on the petitioner (Shri M.M.Singh). Various
bank accounts in Delhi were opened by the brother and father of
the main accused while they are stated to be residing at Bihar.
Purchase of flats had also been made by them in Delhi where
the petitioner is residing. Learned counsel submits that the order
passed by the learned trial court shows application of mind and
there is no infirmity in the same. Counsel further relies upon the
case of State through SPE & CBI A.P. Vs. M. Krishna
Mohan & Anr. reported at AIR 2008 SC 368, para 33 of which
reads as under:
―In a case of this nature where departmental
proceeding was initiated only as against respondent
no.2, the enquiry officer did not have the benefit to
consider all the materials which could be brought on
record by the Department in the light of the
investigation made by a specilized investigating
agency, the evidence of experts and deposition of
witnesses to show that forgery of document has been
committed by forging thumb impression and
handwriting, we are of the opinion that exoneration
of respondent no.2 in the departmental proceedings
cannot lead to the conclusion that he was not guilty
of commission of the offences wherefor he was
charged.‖
9. Mr.Sethi, submits that the case of State through SPE (supra)
is not applicable to the facts of this case as in the aforesaid
matter the investigation had not even commenced by the CBI,
CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 10 of 32
while in this case, the Inspector of the CBI had appeared as a
witness and had made a statement.
10. I have heard learned counsel for the parties and carefully
scrutinized the material on record. At the forefront and before
analyzing the rival contentions of the parties, it would be apt to
recall that a Court exercising revisional jurisdiction cannot go
into intricate details as regards the merits of a matter and may
interfere only when there is any illegality or material irregularity
or impropriety in the order passed by the lower court. A
revisional court cannot act as a court of appeal and reappraise
the merits of the case. Thus this court is to consider whether the
trial Court applied the law with regard to framing of charge to
the facts of this case and if there is any infirmity in the
impugned order.
11. The law with regard to framing of charge is well-settled. In the
case of Union of India Vs. Prafulla Kumar Samal, (1979) 3
SCC 4, the Apex Court laid down broad contours on the point of
framing of charge. The same are reproduced as under:
―10. Thus, on a consideration of the authorities
mentioned above, the following principles emerge:
(1) That the Judge while considering the question
of framing the charges under Section 227 of the
Code has the undoubted power to sift and weigh the
evidence for the limited purpose of finding out
whether or not a prima facie case against the
accused has been made out.
(2) Where the materials placed before the Court
disclose grave suspicion against the accused which
has not been properly explained the Court will be
fully justified in framing a charge and proceeding
with the trial.
CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 11 of 32
(3) The test to determine a prima facie case would
naturally depend upon the facts of each case and it is
difficult to lay down a rule of universal application. By
and large however if two views are equally possible
and the Judge is satisfied that the evidence produced
before him while giving rise to some suspicion but
not grave suspicion against the accused, he will be
fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section
227 of the Code the Judge which under the present
Code is a senior and experienced court cannot act
merely as a Post Office or a mouthpiece of the
prosecution, but has to consider the broad
probabilities of the case, the total effect of the
evidence and the documents produced before the
Court, any basic infirmities appearing in the case and
so on. This however does not mean that the Judge
should make a roving enquiry into the pros and cons
of the matter and weigh the evidence as if he was
conducting a trial.
12. Similar opinion was expressed in the case of State of Orissa
Vs. Debendra Nath Padhi, (2005) 1 SCC 568, wherein the
Apex Court held:
"6. At the stage of framing charge, the trial court
is required to consider whether there are sufficient
grounds to proceed against the accused. Section 227
of the Code provides for the eventuality when the
accused shall be discharged. If not discharged, the
charge against the accused is required to be framed
under Section 228. These two sections read as
under:
Section 227 CrPC
―227. Discharge.--If, upon consideration of the
record of the case and the documents submitted
therewith, and after hearing the submissions of
the accused and the prosecution in this behalf,
the Judge considers that there is not sufficient
ground for proceeding against the accused, he
shall discharge the accused and record his
reasons for so doing.‖
Section 228 CrPC
―228. Framing of charge.--(1) If, after such
consideration and hearing as aforesaid, the Judge
is of opinion that there is ground for presuming
that the accused has committed an offence
which--
CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 12 of 32
(a) is not exclusively triable by the Court of
Session, he may, frame a charge against the
accused and, by order, transfer the case for
trial to the Chief Judicial Magistrate, and
thereupon the Chief Judicial Magistrate shall try
the offence in accordance with the procedure
for the trial of warrant cases instituted on a
police report;
(b) is exclusively triable by the court, he
shall frame in writing a charge against the
accused.
(2) Where the Judge frames any charge under
clause (b) of sub-section (1), the charge shall be
read and explained to the accused, and the
accused shall be asked whether he pleads guilty
of the offence charged or claims to be tried.‖
7. Similarly, in respect of warrant cases triable by
Magistrates, instituted on a police report, Sections
239 and 240 of the Code are the relevant statutory
provisions. Section 239 requires the Magistrate to
consider ―the police report and the documents sent
with it under Section 173‖ and, if necessary, examine
the accused and after giving the accused an
opportunity of being heard, if the Magistrate
considers the charge against the accused to be
groundless, the accused is liable to be discharged by
recording reasons thereof.
8. What is the meaning of the expression ―the
record of the case‖ as used in Section 227 of the
Code. Though the word ―case‖ is not defined in the
Code but Section 209 throws light on the
interpretation to be placed on the said word. Section
209 which deals with the commitment of case to the
Court of Session when offence is triable exclusively
by it, inter alia, provides that when it appears to the
Magistrate that the offence is triable exclusively by
the Court of Session, he shall commit ―the case‖ to
the Court of Session and send to that court ―the
record of the case‖ and the document and articles, if
any, which are to be produced in evidence and notify
the Public Prosecutor of the commitment of the case
to the Court of Session. It is evident that the record
of the case and documents submitted therewith as
postulated in Section 227 relate to the case and the
documents referred in Section 209. That is the plain
meaning of Section 227 read with Section 209 of the
Code. No provision in the Code grants to the accused
any right to file any material or document at the
stage of framing of charge. That right is granted only
at the stage of the trial.
CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 13 of 32
9. Further, the scheme of the Code when
examined in the light of the provisions of the old
Code of 1898, makes the position more clear. In the
old Code, there was no provision similar to Section
227. Section 227 was incorporated in the Code with a
view to save the accused from prolonged harassment
which is a necessary concomitant of a protracted
criminal trial. It is calculated to eliminate harassment
to accused persons when the evidential materials
gathered after investigation fall short of minimum
legal requirements. If the evidence even if fully
accepted cannot show that the accused committed
the offence, the accused deserves to be discharged.
In the old Code, the procedure as contained in
Sections 207 and 207-A was fairly lengthy. Section
207, inter alia, provided that the Magistrate, where
the case is exclusively triable by a Court of Session in
any proceedings instituted on a police report, shall
follow the procedure specified in Section 207-A.
Under Section 207-A in any proceeding instituted on
a police report the Magistrate was required to hold
inquiry in terms provided under sub-section (1), to
take evidence as provided in sub-section (4), the
accused could cross-examine and the prosecution
could re-examine the witnesses as provided in sub-
section (5), discharge the accused if in the opinion of
the Magistrate the evidence and documents
disclosed no grounds for committing him for trial, as
provided in sub-section (6) and to commit the
accused for trial after framing of charge as provided
in sub-section (7), summon the witnesses of the
accused to appear before the court to which he has
been committed as provided in sub-section (11) and
send the record of the inquiry and any weapon or
other thing which is to be produced in evidence, to
the Court of Session as provided in sub-section (14).
The aforesaid Sections 207 and 207-A have been
omitted from the Code and a new Section 209
enacted on the recommendation of the Law
Commission contained in its 41st Report. It was
realised that the commitment inquiry under the old
Code was resulting in inordinate delay and served no
useful purpose. That inquiry has, therefore, been
dispensed with in the Code with the object of
expeditious disposal of cases. Instead of the
committal Magistrate framing the charge, it is now to
be framed by the Court of Session under Section 228
in case the accused is not discharged under Section
227. This change brought out in the Code is also
required to be kept in view while determining the
question. Under the Code, the evidence can be taken
only after framing of charge.
10. Now, let us examine the decisions which have
a bearing on the point in issue.
11. In State of Bihar v. Ramesh Singh1 considering
the scope of Sections 227 and 228 of the Code, it
was held that at the stage of framing of charge it is
1
(1977) 4 SCC 39 : 1977 SCC (Cri) 533.
CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 14 of 32
not obligatory for the judge to consider in any detail
and weigh in a sensitive balance whether the facts, if
proved, would be incompatible with the innocence of
the accused or not. At that stage, the court is not to
see whether there is sufficient ground for conviction
of the accused or whether the trial is sure to end in
his conviction. Strong suspicion, at the initial stage of
framing of charge, is sufficient to frame the charge
and in that event it is not open to say that there is no
sufficient ground for proceeding against the accused.
12. In Supdt. and Remembrancer of Legal Affairs,
W.B. v. Anil Kumar Bhunja22 a three-Judge Bench
held that the Magistrate at the stage of framing
charges had to see whether the facts alleged and
sought to be proved by the prosecution prima facie
disclose the commission of offence on general
consideration of the materials placed before him by
the investigating police officer. (emphasis supplied)
Though in this case the specific question whether an
accused at the stage of framing of charge has a right
to produce any material was not considered as such,
but that seems implicit when it was held that the
Magistrate had to consider material placed before it
by the investigating police officer.
13. In State of Delhi v. Gyan Devi3 this Court
reiterated that at the stage of framing of charge the
trial court is not to examine and assess in detail the
materials placed on record by the prosecution nor is
it for the court to consider the sufficiency of the
materials to establish the offence alleged against the
accused persons.
14. In State of M.P. v. S.B. Johari4 it was held that
the charge can be quashed if the evidence which the
prosecutor proposes to adduce to prove the guilt of
the accused, even if fully accepted, cannot show that
the accused committed the particular offence. In that
case, there would be no sufficient ground for
proceeding with the trial.
15. In State of Maharashtra v. Priya Sharan
Maharaj5 it was held that at Sections 227 and 228
stage the court is required to evaluate the material
and documents on record with a view to finding out if
the facts emerging therefrom taken at their face
value disclose the existence of all the ingredients
constituting the alleged offence. The court may, for
this limited purpose, sift the evidence as it cannot be
expected even at that initial stage to accept all that
the prosecution states as gospel truth even if it is
opposed to common sense or the broad probabilities
of the case.
2
(1979) 4 SCC 274 : 1979 SCC (Cri) 1038 : (1980) 1 SCR 323.
3
(2000) 8 SCC 239 : 2000 SCC (Cri) 1486.
4
(2000) 2 SCC 57 : 2000 SCC (Cri) 311.
5
(1997) 4 SCC 393 : 1997 SCC (Cri) 584.
CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 15 of 32
16. All the decisions, when they hold that there
can only be limited evaluation of materials and
documents on record and sifting of evidence to prima
facie find out whether sufficient ground exists or not
for the purpose of proceeding further with the trial,
have so held with reference to materials and
documents produced by the prosecution and not the
accused. The decisions proceed on the basis of
settled legal position that the material as produced
by the prosecution alone is to be considered and not
the one produced by the accused. The latter aspect
relating to the accused though has not been
specifically stated, yet it is implicit in the decisions. It
seems to have not been specifically so stated as it
was taken to be a well-settled proposition. This
aspect, however, has been adverted to in State Anti-
Corruption Bureau v. P. Suryaprakasam6 where
considering the scope of Sections 239 and 240 of the
Code it was held that at the time of framing of
charge, what the trial court is required to, and can
consider are only the police report referred to under
Section 173 of the Code and the documents sent
with it. The only right the accused has at that stage
is of being heard and nothing beyond that. (emphasis
supplied) ............‖
13. Thus at the time of framing of charge, the Court is not supposed
to look into the evidence of the case in detail and is only to
consider whether there is a strong suspicion against the accused
on the basis of the material that comes before it. The court has
the power to sift the evidence for the limited purpose of finding
out, whether or not a prima facie case is made out against the
accused. However, the Court is not supposed to delve deeply
into the merits of the matter and start a roving expedition into
the evidence that is brought forth it, as if conducting a trial.
Further there is no one fixed definition that may be ascribed to
the term ―prima facie" nor can the term ―strong suspicion‖ have
a singular meaning. While coming to the conclusion of a strong
prima facie case or strong suspicion, the Court shall have to
6
1999 SCC (Cri) 373.
CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 16 of 32
decide each case on the basis of its own independent facts and
circumstances.
14. Reading the facts of this case and the rival contentions raised,
in light of the principles of law laid down as per Prafulla kumar
(supra) and Debendra Nath Padhi (supra), it is seen that a
departmental inquiry was initiated against Shri M.M. Singh (a
pubic servant), on charges of not having sought
permission/reported to the department about the various
moveable and immoveable properties acquired by him in the
name of his family persons, during the check period of 1990-
1995. Simultaneously, court proceedings were launched against
Shri M.M. Singh, wherein it was alleged that Shri M.M. Singh had
amassed assets disproportionate to his income. It was further
alleged that the same had been done in connivance with his
father and brother, inasmuch as huge moveable and
immoveable assets were bought in their respective names
during the check period of 1990-1995. Vide order dated
02.07.2004, passed by the by the Disciplinary Authority, Shri
M.M. Singh was absolved of the charges made against him
before his department. However, the learned Special Judge,
before whom the criminal proceedings were pending, was of the
opinion that a prima facie case was made out against Shri M.M.
Singh and his father and brother, and consequently, vide order
dated 29.08.2005, charges were framed against the three
accused persons.
15. It has been contended by learned senior counsel for the
CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 17 of 32
petitioners that Shri M.M. Singh has been absolved of all the
charges inasmuch as the department SAIL which had initiated
proceedings against Shri M.M. Singh, has found in its order that
Shri M.M. Singh was innocent and thus the learned Special Judge
has come to an incorrect finding that a case is made out against
him and other petitioners. Learned counsel for the petitioners
has also submitted that the charges in the two proceedings are
not to be mechanically compared but the essence of the findings
of the Disciplinary Authority need be appreciated. On the
contrary, counsel for the CBI has argued that the charges in the
departmental inquiry were separate and distinguished from the
charges framed in the case before the learned trial Court, so the
finding of the Disciplinary Authority is not binding on the criminal
Court. Para 13 of the reply filed by the respondent (CBI) reads as
under:
―13. The prosecution case is that the accused has
purchased properties in the name of his family
members and made investments in their names only
to defeat the provisions of law. The documentary
and oral evidences produced before the Trial Court
will prove the prosecution case. Whereas
departmental enquiry was initiated by the SAIL
against the petitioner for 9 instances of immovable
properties acquired in the name of (1) Sharat
Chander Singh, (younger brother) (2) Radheshwar
Prasad Singh (father) & (3) Rekha Singh (late wife), 8
instances of movable properties acquired in name of
late Rekha Singh, Aditya Singh (minor son), Vishal
Singh (minor son), R.P.Singh (father), Vandana Singh
(wife) and that Shri M.M. Singh had opened two SB
accounts no.5440 in the name of his minor son
Master Anshuman Singh and SB a/c No.5439 in the
name of his second minor son Master Vishal Singh on
15.3.91 at State Bank of India, Masjid Moth, New
Delhi whereas instances of immovable properties and
movable properties shown in the charge sheet filed
before this Hon'lbe Court against Madan Mohan Singh
and others are 12 & 46 respectively.
CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 18 of 32
In departmental inquiry, the management has
examined only five witnesses out of 126 witnesses
cited in the list of witnesses attached with the
charge. M.M.Singh had produced five witnesses in
his defence namely (i) Shri Deva Singh (father-in-law
of Madan Mohan Singh) (ii) Smt. Vandana Singh (wife
of M.M.Singh), (iii) Shri R.P. Singh (father of Madan
Mohan Singh), (iv) Shri Shatrughan Singh & (v) Shri
Sharat Chander Singh (younger brother of Madan
Mohan Singh). R.P. Singh and S.C. Singh are also
accused in the present case. The prosecution
witnesses cited in the list of witnesses enclosed with
the charge sheet filed in the court are 126 in number
who will prove the criminal charges leveled against
accused Madan Mohan Singh and others. The
statement of witnesses are supported by
documentary evidence also. From the above facts, it
is very clear that placing reliance upon the order in
departmental enquiry will undermine the interest of
justice.‖
16. In view of the above contentions raised, I deem it appropriate to
reproduce the Statement of Articles of Charge framed against
the petitioner by the Steel Authority of India:
―STATEMENT OF ARTICLE OF CHARGE FRAMED
AGAINST SHRI MADAN MOHAN SINGH, THE THEN
SR.MANAGER AND PRESENTLY JOINT DIRECTOR,
STEEL AUTHORITY OF INDIA LIMITED, CORPORATE
OFFICE, NEW DELHI.
For Article of Charge No.1
That, the said Shri Madan Mohan Singh, Joint Director
(SAIL), Corporate Office, New Delhi while functioning
as Manager /Sr.Manager, RMD, SAIL, New Delhi
during the period of 1990 to 1995 failed to maintain
absolute integrity and devotion to duty and
committed gross misconduct in much as he
knowingly and intentionally did not obtain permission
nor intimate to his department in the matter
regarding purchase/ acquisition of immovable
property in the name of his wife late Smt.Rekha
Singh, his brother Shri Sharat Chander Singh and in
the name of his father Shri Radeshwar Prasad Singh.
And thus, he failed to maintain absolute integrity and
devotion to duty and acted in a manner unbecoming
of a public servant and thereby contravened the
CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 19 of 32
provisions of Rule 16 (1) and 16(3) of the Conduct,
Discipline and Appeal Rules, 1977 of Steel Authority
of India Limited, New Delhi.
For Article of Charge No.2.
That, the said Shri Madan Mohan Singh, Joint Director
(SAIL), Corporate Office, New Delhi while functioning
as Manager/ Sr. Manager, RMD, SAIL, New Delhi
during the period of 1990 to 1995 failed to maintain
absolute and devotion to duty and committed gross
misconduct in much as he knowingly and
intentionally did not intimate to his department in
matter regarding heavy investments made in various
companies in the name of his minor sons viz. Master
Vishal Singh and Master Aditya Singh @ Master
Anshuman Singh, in the name of his father
Radheswar Prasad Singha nd in the name of his wife
Smt.Vandana Singh @ Smt.Vandana Chauhan.
Thus, the said Shri Madan Mohan Singh by his acts
committed gross misconduct and failed to maintain
his absolute integrity, devotion to duty and acted in a
manner unbecoming on his part as public servant
and thereby contravened the provisions of Rule 16(1)
and 16(3) of Conduct, Discipline and Appeal Rules,
1977, Steel Authority of India Limited.‖
17. Charges framed by learned court below vide its order dated
29.8.2005 are reproduced:
―I, ........................., Special Judge, CBI, New Delhi, do
hereby charge you Accused No. (1) Madan Mohan Singh as
under:
That you being public servant employed at Steel Authority
of India Ltd. New Delhi during the period 1.1.90 to 31.12.95
acquired assets which were disproportionate to your known
source of income and on 31.12.1995 you had been in
possession of pecuniary resources/properties in your name
and in the name of your sons Sh. Vishal Singh and Master
Aditya Singh, in the name of your wives Smt. Rekha Singh
and Smt. Vandana Singh, your father in law Deva Singh, in
the name of your father Sh. R.P. Singh and in the name of
your brother Sh. S.C. Singh to the extent of
Rs.72,22,166.95/- which were disproportionate of your
known source of income for which could not satisfactorily
account and thereby committed an offence under Section
13 (1) (e) of Prevention of Corruption Act, 1988 punishable
under Section 13(2) of the Act and within my cognizance.
CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 20 of 32
And I hereby direct that you be tried by this court for the
aforesaid charge.‖
18. The order dated 02.07.2004, by which the petitioner was
exonerated by the Steel Authority of India is also being
reproduced hereunder:
―No.VIg: 170197 July 2, 2004
ORDER
Whereas Major Penalty proceedings under Rule 25 of SAIL Conduct Disciplinary & Appeal Rules 1977 were initiated against Shri M.M. Singh, Joint Director (Quality) SAIL, New Delhi vide Memorandum No.170197 dated 23.9.2002 for failure to report acquisition of assets acquired in the name of his family member. This charge sheet has two parts relating to failure in reporting in respect of (i) immovable property and (ii) movable property. Shri Singh was also placed under suspension vide order No.VIg: 170197 dated 5.6.2003.
WHEREAS Sh.MM.Singh denied the charges and an Inquiry Committee was constituted vide order No.170197 dated 9.5.2003 to enquire into the charges.
AND WHREAS the Inquiry Authority had submitted his report on 6.4.2003 to the undersigned. The Inquiry Authority has held that immovable properties under question held by the family members of Shri M.M.Singh were acquired out of their own sources of funds/ income and thus not reportable in view of Explanation No.2 of Rule 16 of SAIL CDA Rules. IA thus held that the first part of the charge relating to non-reporting of acquisition of immovable assets is not substantiated. So far as non reporting of movable assets acquired by family members of Shri Singh is concerned, IA has held that as Explanation No.2 is not applicable to the sub-rule 16(3) dealing with reporting movable properties, employees have to report the same within one month of any transaction irrespective of source of funding. As such movable property acquired by family members of Shri Singh were required to be reported and held the charge as established.
AND WHEREAS a copy of the enquiry report was given to Shri Singh vide Memo dated 19.4.2004 for his submission, if any. Shri Singh vide his submission dated 1.5.2004 contested the interpretation of the IA about provision of SAIL CDA Rules on declaration of acquisition/disposal of movable assets i.e. Explanation 2 under Rule 16 of the SAIL CDA Rules was not applicable to the sub rule 16(3) dealing with movable properties.
CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 21 of 32 AND WHEREAS as the issue raised was related to interpretation of CDA Rules, the matter was referred to Corporate Law, who opined that ―movable property owned or held by the members of the family of employees out of their own fund or income are not required to be reported under CDA Rules.....‖ ON careful consideration of the charge memorandum, enquiry report, representation made by Sh.Singh, opinion of ED (Law) and other relevant records, I feel that in the interest of fair play and justice, it would be logical to interpret that the explanation given under Rule 16 in respect of acquisition of property by spouse and /or family members out of their own income/source and not from the employee concerned apply to both immovable and movable properties. As such, it would be unfair to hold Shri Singh liable for the failure to report in respect of movable properties, while holding that same is not required in case of immovable properties. In view of this, I give the benefit of doubt to the charge sheeted officer and held that the charges are not established.
NOW, THEREFORE, after consideration of all relevant facts and circumstances of the cases, I exonerate Sh.M.M.Singh of the charges leveled against him vide Memorandum No.170197 dated 23.9.2002. I also revoke his suspension ordered vide Order No. Vig: 170197 dated 5.6.2003. These, however, will be without any prejudice to the criminal proceedings under subjudice for which sanction for prosecution was given vide order dated 28.5.2002.‖
19. In my considered opinion, it is settled position of law that simply because the accused has been exonerated by the Disciplinary Authority on the charges raised before it, does not concomitantly imply that the criminal proceedings will also lapse and lead to an acquittal of the accused. Relying upon the decision rendered by the Apex Court in the case of Standard Chartered Bank and Ors. Vs. Directorate of Enforcement and Ors., reported at 2006 (1) JCC 488, this Court in the case of Sunil Gulati Vs. RK Vohra reported at 2007 (1) JCC 220 has laid a two point yard- stick so as to determine whether criminal proceedings can CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 22 of 32 continue in the face of the fact that the accused has been absolved of the charges, by the Disciplinary Authority of his organization. Firstly, whether the charges in the departmental proceedings and the criminal prosecution are identical or not; and, secondly, whether exoneration of the concerned person in the departmental proceedings is on merits, holding that there was no contravention of the provisions of any act. Relevant portion from Sunil Gulati (supra) is reproduced as under:
―25 ......
1. On the same violation alleged against a person, if adjudication proceedings as well as criminal proceedings are permissible, both can be initiated simultaneously. For initiating criminal proceedings one does not have to wait for the outcome of the adjudication proceedings as the two proceedings are independent in nature.
2. The findings in the departmental proceedings would not amount to res judicata and initiation of criminal proceedings in these circumstances can be treated as double jeopardy as they are not in the nature of prosecution'.
3. In case adjudication proceedings are decided against a person who is facing prosecution as well and the Tribunal has also upheld the findings of the adjudicators/assessing authority, that would have no bearing on the criminal proceedings and the criminal proceedings are to be determined on its own merits in accordance with law, uninhibited by the findings of the Tribunal. It is because of the reason that in so far as criminal action is concerned, it has to be proved as per the strict standards fixed for criminal cases before the criminal court by producing necessary evidence.
4. In case of converse situation namely where the accused persons are exonerated by the competent authorities/Tribunal in adjudication proceedings, one will have to see the reasons for such exoneration to determine whether these criminal proceedings could still continue. If the exoneration in departmental adjudication is on technical ground or by giving benefit of doubt and not on merits or the adjudication proceedings were on different facts, it would have no bearing on criminal proceedings. If, on the other hand, the exoneration in the adjudication proceedings is on merits and it is found that allegations are not substantiated at all and the concerned person(s) is/are innocent, and the criminal prosecution is also on the same set of facts and circumstances, the CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 23 of 32 criminal prosecution cannot be allowed to continue. The reason is obvious criminal complaint is filed by the departmental authorities alleging violation/ contravention of the provisions of the Act on the part of the accused persons. However, if the departmental authorities themselves, in adjudication proceedings, record a categorical and unambiguous finding that there is no such contravention of the provisions of the Act, it would be unjust for such departmental authorities to continue with the criminal complaint and say that there is sufficient evidence to foist the accused with criminal liability when it is stated in the departmental proceedings that ex-facie there is no such violation. The yardstick would, therefore, be to see as to whether charges in the departmental proceedings as well as criminal complaint are identical and the exoneration of the concerned person in the departmental proceedings is on merits holding that there is no contravention of the provisions of any act.‖
20. On the first count, it is seen that the learned Special Judge has vide order dated 17.08.2005 observed that the charges framed against Shri M.M. Singh before the Disciplinary Authority were different from those framed before the criminal Court. The learned Judge observed that disciplinary proceedings against the petitioner, Shri M.M. Singh were for the violation of the Conduct Disciplinary and Appeal Rules, 1997 and for not having intimated the higher authorities about the purchase of properties. Thus it is seen that the disciplinary proceedings against Shri M.M. Singh, were not for the possession of assets disproportionate to his income. I am in firm agreement with the opinion rendered by the learned Special Judge that the two charges were clear and distinct. Furthermore perusal of the statement of article of charge framed by the Steel Authority of India would show that the petitioner had failed to maintain absolute integrity and devotion to duty and committed gross misconduct, as he knowingly and intentionally did not obtain permission nor intimated his department in the matter of purchase/ acquisition CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 24 of 32 of movable and immovable property in the name of his wives, father and brother. The thrust of the charge was that no permission was sought, whereas in the charge which has been framed by the Court the thrust is on assets acquired which were disproportionate to the known source of income as on 31.12.1995 in the name of the petitioner - Madan Mohan Singh and in the name of his sons, wives (first wife had died), father and brother to the extent of Rs.72,22,166.95. As per the charge- sheet filed by the CBI, during the check period, Shri M.M. Singh had amassed assets disproportionate to his income inasmuch as several properties were bought/acquired by him in his own name as well as in the name of his family members inter alia wife, son, father and brother. Relevant portion of the charge sheet is reproduced hereunder:
―RC4(A)/98/A dated 26.10.1998 was registered against Shri Madan Mohan Singh, the then Sr. Dy. Director (Quality) Corporate Office Steel Authority of India Ltd., New Delhi, U/s 13(2) r/w 13(1) (e) of PC Act, 1988, on source information.
The allegations in brief are that Sh. Madan Mohan Singh while working in the aforesaid capacity had amassed disproportionate assets moveable and immovable in the shape of Cars, FDRs, Cash, Plots, Flats and Houses in his name and/or in the name of his family members/ relatives worth over 98 lacs during Jan. 1990 to Dec. 1995.‖
21. The charge sheet further states that the total income (during the check period) of petitioner, Shri M.M. Singh, his dependents and family members from the salary, agricultural land, pension and from the investments made comes to Rs.59,17,820.63/-.
The total expenditure during the check period comes to Rs.2,76,045/-. Further during investigation it was revealed that CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 25 of 32 the petitioner, Shri M.M. Singh, and his family members were found to be in possession of movable assets amounting to Rs.1,10,32,267.10/-. These movable assets were in the shape of bank balances in various banks, investments, fixed deposits, LIC policies, UTI (ULIP), LIC Mutual Fund, Jeevan Beema Sahiyog (Dhan Raksha) and a Maruti Car bearing No.DL 4CA -6844. The investigation also revealed that during the period from 01.09.1990 to 31.12.1995, petitioner, Shri M.M. Singh, had acquired immovable assets in his name; in the name of his late wife Smt. Rekha; his present wife- Smt. Vandana Singh; brothers Shri Sharat Chandra Singh, late Arun Kumar Singh; father Shri Radheshwar Prasad Singh; and, mother late Smt. Sudama Devi, amounting to Rs.18,31,675.48/-. Thus, as per the charge sheet, petitioner, Shri M.M. Singh, and his family members were found to possess disproportionate assets during the aforesaid check period, amounting to Rs.72,22,166.95/-. In my considered opinion, the charges framed against this petitioner, Shri M.M. Singh, before the Disciplinary Authority are completely different from the allegations that have been made in the charge-sheet by the CBI. There is no force in the contention of learned counsel for the petitioners that the charges in the two proceedings are similar.
22. Further, vide order dated 02.07.2004, the Disciplinary Authority of SAIL had observed that the immovable properties under question, held by the family members of the petitioner, Shri M.M. Singh, were acquired out of their own sources of funds/income and thus not reportable in view of explanation CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 26 of 32 no.2 of Rule 16 of SAIL CDA Rules. So far as non-reporting of movable assets acquired by the family members of petitioner, Shri M.M. Singh, is concerned, the Disciplinary Authority observed that since one was not required to inform the department about the immovable property acquired by the family members out of their own sources of income, it would be unfair to say that one should report about the movable properties acquired in the like manner. The Disciplinary Authority further stated that it was giving benefit of doubt to the charge-sheeted officer (Sh. M.M. Singh). Learned counsel for the petitioners has drawn heavily on the above observations made by the Disciplinary Authority that property had been acquired by the family members of the petitioners out of their own sources of income. I find there to be no merit in this contention. A careful perusal of the order passed by the Disciplinary Authority would show that the authority had categorically opined in the last three lines of the order that any observations passed would be without any prejudice to the criminal proceedings under subjudice for which sanction for prosecution was granted vide order dated 28.05.2002. Further, I find that the probe with regard to possession of moveable and immoveable properties was not adequately undertaken by the department. Counsel for the petitioners has not been able to rebut the argument of counsel for respondent (CBI) that, whereas departmental inquiry was initiated by the SAIL against the petitioner only for nine (9) instances of immovable properties and eight (8) instances of movable properties acquired in the name of various family CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 27 of 32 members. On the other hand, instances of movable and immovable properties acquired by the family members, shown in the charge-sheet filed before the trial Court as well as before this Court are forty-six (46) and twelve (12) respectively. In the departmental inquiry, only five (5) witnesses out of a total number of 126 witnesses were examined. Further as the order passed by the Disciplinary Authority itself says, Shri M.M. Singh was given benefit of doubt by his department. For a person to be absolved of all the charges made against him in criminal proceedings on the basis of the proceedings before the disciplinary authority, it is necessary that the accused should have been exonerated on merits by the Disciplinary Authority. However, I find that the petitioner, Shri M.M. Singh, was never absolved of the charges alleged against him and was only given a benefit of doubt. In view of this, the fact that a CBI Official had also been examined before the Disciplinary Authority, does not also help the cause of the petitioner (Shri M.M. Singh). From the above facts, it is very clear that placing reliance upon the order of the departmental inquiry will undermine the interest of justice. There is a grave suspicion against the petitioner Shri M.M. Singh in acquiring assets disproportionate to his known sources of income. I find there to be no infirmity in the order of the learned Special Judge vis-à-vis- framing charges against Shri M.M. Singh.
23. In so far as the father and brother of Shri M.M. Singh are concerned, it has been brought to the notice of this Court that the father (Shri Radheshwar Prased Singh) of Shri M.M. Singh is a CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 28 of 32 retired school teacher, generating a pension of Rs.2,000/-, per month and was looking after the agricultural land. During investigation, the I.O. had collected evidence about the income of others member of the family as well and it is stated that the brother (Shri Sharat Chandra Singh) of Shri M.M. Singh, had no source of income and was primarily assisting his father in agricultural activities. It has been also brought to the attention of this Court that the investigation revealed that all the three persons entered into a conspiracy and the petitioner (Shri M.M.Singh) being a public servant, purchased the properties in the name of his father and brother. In the report (copy of which has been filed on record) submitted by the Inquiry Officer to the Chairman, Disciplinary Authority, it has been specifically noted by the Inquiry Officer that:
―This would of course imply that the [Charged Officer] CO had given wrong declaration about the income of his some dependent family members, but that is not the subject of the present enquiry.‖
24. Further, I find merit in the reasoning given by the learned Special Judge that it smells fishy that the father and brother of Shri M.M. Singh had become income tax assesses only in the year 1996-97, and there is no reasonable explanation as to from where did they accumulate and amass so many properties in their name, when they were not even income tax assesses during the check period of 1990-1995. Thus it is unclear as to how did they come to be in possession of so many assets all of a sudden. In my considered opinion, in view of the observations of the Apex Court in the case of P. Nallamal and another Vs. CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 29 of 32 State of Tamil Nadu, reported at 1999 Cri.L.J. 3967: (1999) 6 SCC 559, the father and brother of Shri M.M. Singh are also liable to be tried along with Shri M.M. Singh and that the charges framed against them are as per settled position of law. It has been held in Nallamal (supra) that even a non-public servant can be prosecuted for the offence of owning disproportionate assets if he abets the said offence by a public servant. Relevant portion of the judgment is reproduced hereunder:
"21. There is no force in the contention that the offences under Section 13(1)(e) [of the PC Act] 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.CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 30 of 32
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.
25. While to attract the offence of abetment of disproportionate assets a person need not be dependent on the main accused and any private person can abet the said offence, in this case there is substantial material on record to show that the father and brother were dependent on the main accused. Thus I find that it has been correctly held per the learned Special Judge, that prima facie, the three persons had entered into a conspiracy and the petitioner (Shri M.M.Singh) being a public servant purchased/acquired the illegal properties in the name of his father and brother. Further I find that the learned Special Judge has correctly observed that at the stage of framing of CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 31 of 32 charge, no elaborate enquiry is required. The Court has to be satisfied only that a prima facie case of commission of the offence has been made out and the accused can be discharged only if the allegations made against them do not constitute the necessary ingredients for the offence.
26. In view of the aforestated reasons, I find that the order dated 17.08.20005 and dated 29.8.2005, contains cogent reasons and does not warrant interference by this Court. There is no impropriety or material irregularity in the said orders. A bare reading of the order would show that the learned Special Judge did not arbitrarily pass an order framing charges against the petitioners. I find that the learned Special Judge appreciated the law in the right perspective and came to a correct finding that a prima facie case and a strong suspicion is made out against the petitioners, on the basis of the material on record. Accordingly, there is no infirmity in the order dated 17.8.2005 and the order dated 29.8.2005 framing charges against the petitioners, passed by the learned Special Judge in FIR No.RC-4(A)/98/ACU VIII.
27. Present revision petitions (CRL.REV.P. 834/2005, CRL.REV.P. 848-49/2005) stand dismissed.
G.S.SISTANI, J.
rd September 3 , 2009 'msr' CRL.REV.P. 834/2005 & CRL.REV.P. 848-49/2005 Page 32 of 32