Madras High Court
M.Muthulakshmi vs State Rep By on 19 March, 2024
Crl.OP.(MD).No.3083 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 20.12.2023
Pronounced On : 19.03.2024
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
Crl.OP(MD)No.3083 of 2023
M.Muthulakshmi ... Petitioner/Accused No.2
Vs.
1.State rep by
The Inspector of Police,
Vigilance and Anti Corruption,
Madurai – 625 002. ... 1st Respondent/Complainant
2. M.Sathyaseelan,
The Deputy Superintendent of Police,
Vigilance and Anti Corruption,
Madurai. ... 2nd Respondent/Investigating Officer
PRAYER: Criminal Original Petition has been filed under Section 482 of
Cr.P.C., to issue appropriate directions to the first respondent to consider all the
relevant documents mentioned in and annexed to the representations dated
19.11.2022, 28.11.2022 in which an undertaking was also given to produce all
the original documents to the respondent in connection with Crime No.18 of
2019 on the file of the firs respondent and the same representation re-submitted
with hard copies through speed post on 10.02.2023 from the petitioner herein
and to finalise the investigation based on the same on or prior to 27.03.2023.
1/21
https://www.mhc.tn.gov.in/judis
Crl.OP.(MD).No.3083 of 2023
For Petitioner : Mr.N.R.Elango, learned Senior Counsel
for Mr.M.Ravi
For Respondents : Mr.Hasan Mohamed Jinnah
State Public Prosecutor
Assisted by Mr.T.Senthil Kumar,
Additional Public Prosecutor
ORDER
The petition is filed to issue appropriate directions to the first respondent to consider all the relevant documents in connection with Crime No.18 of 2019 on the file of the first respondent annexed to the representations dated 19.11.2022, 28.11.2022 and 10.02.2023 in which an undertaking was also given to produce all the original documents to the respondents and the same representation re-submitted with hard copies through speed post on 10.02.2023 from the petitioner herein and to finalise the investigation based on the same on or prior to 27.03.2023.
2.The respondent police initiated action against petitioner/A2 and her husband/A1 in Crime No.18 of 2019 for the offences under Sections 109 IPC r/w 13(2) r/w 13(1)(B) of Prevention of Corruption Act, 1988, as amended by the 2/21 https://www.mhc.tn.gov.in/judis Crl.OP.(MD).No.3083 of 2023 Prevention of Corruption (Amended) Act, 2018.
3. According to the prosecution, the husband of the petitioner was working as General Manager, Aavin in the year 2017-2018 in Vellore. Now, he is working as Additional Director/Principal, Regional Institute of Rural Development, Pattukottai, Tanjore District. There is an allegation against A1 that he had accumulated movable and immovable and properties more than known sources of his income in his name and his family members, namely, the petitioner herein. According to the prosecution, the petitioner is a house wife having no independent income and A1 is a public servant who accumulated the disproportionate assets beyond his known source of income. According to the prosecution, the value of the disproportionate assets is Rs.4,74,59,900/-. The percentage of the disproportionate assets is more than 110%. The Investigating Agency after completing the investigation furnished the Final Opportunity Notice. The petitioner has come forward with a plea to direct the Investigating Officer to consider the reply given by the petitioner and consider the relevant documents annexed with the Final Opportunity Notice and finalise the investigation considering the above documents.
3/21 https://www.mhc.tn.gov.in/judis Crl.OP.(MD).No.3083 of 2023 4.1. The learned Senior Counsel for the petitioner submitted that as per manual, If final Opportunity Notice is given and the accused furnished explanation annexing documents and the same are to be considered in a meaningful way in order to arrive at the truth in the allegation which is mandatory on the part of the Investigating Officer.
4.2. The learned Senior Counsel for the petitioner further submitted that once the Final Opportunity Notice is issued, it is the duty of the Investigating Officer to consider the material in a meaningful way in order to do a fair investigation.
4.3. In sum and substance, the learned Senior Counsel submitted that the Investigating Agency is bound to consider the documents and reconsider the conclusion arrived earlier by the Investigating Agency.
4.4. The learned Senior Counsel further submitted that as per Section 173(5) Cr.P.C., is concerned, the word 'to rely' and 'whom' are significantly found But, proviso under Section 207 (2) Cr.P.C., clearly stated that all the documents including the document submitted by the accused during the investigation form 4/21 https://www.mhc.tn.gov.in/judis Crl.OP.(MD).No.3083 of 2023 part of the documents of 207 Cr.P.C., as per interpretation of the Hon'ble Supreme Court in judgment in Manoj and Others Vs. State of Madhya Pradesh reported in 2023 2 SCC 353. Followed by the Hon'ble Supreme Court in judgment in P. Ponnusamy v. State of T.N., reported in 2022 SCC Online SC 1692, and the Investigating Agency, is duty bound to consider the same. The word 173(2)(C) Cr.P.C., 'the names of the persons who appear to be acquainted with the circumstances of the case' clearly mandate the duty on the part of the Investigating Officer to form the opinion on the basis of the material submitted on 19.11.2022.
4.5. The learned Senior Counsel appearing for the petitioner further submitted that the Investigating Officer is not supposed to suppress the material which tend to favour the accused. As per the judgment reported in 2021 2 SCC 353, he duty bound to say as to what are all the documents collected by him and from which source so as to form the opinion.
4.6. The learned Senior Counsel appearing for the petitioner further submitted that in the case of alibi, it is the duty of the officer to find whether the plea of the accused is correct or not. In this case also, it is the duty of the 5/21 https://www.mhc.tn.gov.in/judis Crl.OP.(MD).No.3083 of 2023 Investigating Officer to arrive at a correct conclusion on the basis of the material submitted by the accused.
4.7. According to the learned Senior Counsel appearing for the petitioner, the Investigating Officer is duty bound to reassess the entire document and oral evidence and form the opinion that even after the acceptance of the explanation along with the document it constitutes the offence under Section 13(1)(e) of the Prevention of Corruption Act.
4.8. The learned Senior Counsel appearing for the petitioner further submitted that the charge sheet is the final opinion of the Investigating Officer for arriving the said opinion. It will be fair on the part of the Investigating Officer to consider and annex the documents.
4.9. The learned Senior Counsel appearing for the petitioner emphasized the word 'consider' in the meaningful way to avoid unnecessary prosecution under the grave charge of disproportionate assets. 6/21 https://www.mhc.tn.gov.in/judis Crl.OP.(MD).No.3083 of 2023
5. Per contra, the learned State Public Prosecutor appearing for the State submitted that the provision under Section 207 Cr.P.C., is concerned, it is relating only to the evidence collected by the prosecution. It is the duty of the Investigating Officer to produce all the collected materials during the investigation whether it is in favour of the prosecution or in favour of the accused and it will be produced along with the final report i.e., if the Investigating Officer is does not want to prove the documents in favour of the accused, he is not duty bound to furnish the same before the Court. The said principle cannot be extended to the defence document submitted by the accused in reply to the Final Opportunity Notice.
5.1. The learned State Public Prosecutor appearing for the State further submitted that the Investigating Officer need not consider the documents if the explanation is not correct in view of the Hon'ble Constitution Bench Judgment reported in 1991 3 SCC 655 in the case of (K.Veerasamy Vs. Union of India) (Paragraph 75). Even as per the submission of the the learned Senior Counsel appearing for the petitioner, the final report is the opinion of the Investigating Officer. To arrive at the opinion, the Investigating Officer is not duty bound to consider the defence of the accused. As per the Act, there is a statutory procedure 7/21 https://www.mhc.tn.gov.in/judis Crl.OP.(MD).No.3083 of 2023 contemplated to disprove the statutory presumption. The word 'Satisfactorily Account' in the Act itself shows that it is the duty of the accused during the trial, to satisfactorily account. The Investigating Officer is not the authority to arrive at a conclusion that the accused has rebutted the presemption.
5.2. The learned State Public Prosecutor appearing for the State further submitted that the case of Manoj and Others Vs. State of Madhya Pradesh reported in 2023 2 SCC 353 relied by the learned Senior Counsel for the petitioner is explained by the case of P.Ponnusamy Vs. State of Tamil Nadu reported in 2022 SCC OnLine SC 1543. The principle laid down by the Hon'ble Supreme Court in the said case is applied only during the trial not during the investigation.
6.The sum and substance of the arguments of the learned Senior counsel is that as per the interpretation of Sections 173 and 207 of Cr.P.C., and the judgment of the Honourable Supreme Court reported in the case of Manoj and Others Vs. State of Madhya Pradesh reported in 2023 2 SCC 353 and other judgments, it is implied that it is the duty of the investigating officer to give a finding on the basis of the documents furnished by the accused officer. More 8/21 https://www.mhc.tn.gov.in/judis Crl.OP.(MD).No.3083 of 2023 particularly, in the prevention of Corruption Act case, it is the duty of the investigating officer, after receipt of the documents from the accused, to assess and give a finding whether there is any material to continue the investigation and prosecute.
6.1.The learned senior counsel elaborated argument and on the strength of that he made a detailed representation with necessary document and he is ready to furnish the original document is called for by the investigating officer. It is the specific case of the prosecution that the petitioner and her husband accumulated wealth over the lawful income of her husband, who was working as General Manager, Aavin. During that period, the petitioner conducted many business and hence, the calculation of the disproportionate assets to the Rs.4,41,84,004/- during the check period 01.06.2010 and 31.08.2018 is to be assessed by the investigating officer on the basis of material furnished by the accused if such procedure is followed then there is disproportionate assets as projected by the prosecution. In the said circumstances, he pleaded to consider his prayer. 9/21 https://www.mhc.tn.gov.in/judis Crl.OP.(MD).No.3083 of 2023
7.Whether the prayer of the petitioner is maintainable:
This Court before going to the submission of the learned senior counsel reproduce the prayer filed in this Criminal Original Petition:
to issue appropriate directions to the first respondent to consider all the relevant documents mentioned in and annexed to the representations dated 19.11.2022, 28.11.2022 in which an undertaking was also given to produce all the original documents to the respondent in connection with Crime No.18 of 2019 on the file of the firs respondent and the same representation re-submitted with hard copies through speed post on 10.02.2023 from the petitioner herein and to finalise the investigation based on the same on or prior to 27.03.2023.
7.1.The petitioner couched the prayer in such a way to issue a direction to the investigating officer to conduct the investigation in a particular direction to arrive a particular finding. It is well settled principle, even the constitutional Court has no jurisdiction to issue a direction to the investigating officer to conduct the investigation in a particular manner. Further the prayer is couched to consider all the documents of the accused and form opinion and also finalise the investigation on or before 27.01.2023. The said portion of the prayer is also not at all maintainable on the ground that the consideration of the documents of the 10/21 https://www.mhc.tn.gov.in/judis Crl.OP.(MD).No.3083 of 2023 accused even at the stage of the discharge petition is not maintainable as per the law laid down by the Hon'ble Constitution Bench judgment of the Supreme Court in the case of State of Orissa Vs. Debendra Nath Padhi reported in 2005 1 SCC 568. Even this Court has no direction to direct the investigating officer to do the investigation in particular angle. In the similar circumstances, the Hon'ble Three Member Bench of the Supreme Court reported in 2009 15 SCC 533 in the case of State of Madhya Pradesh Vs. Virender Kumar Tripathi has held as follows:
13. So far as the exclusion of certain alleged income of relatives is concerned, it needs to be noted that these are matters of evidence and in such matters, the decision of the Hon'ble Supreme Court in the case of State of Orissa Vs. Debendra Nath Padhi is relevant.
Therefore, in all aspects, the petitioner's prayer is not at all maintainable.
8.Discussion on merits:
Since the learned Senior counsel made lengthy submission and the learned State Public Prosecutor countered the same by making meticulous submissions, this Court is duty bound to decide the issue whether the investigating officer is duty bound to arrive at the conclusion on the basis of the documents furnished by 11/21 https://www.mhc.tn.gov.in/judis Crl.OP.(MD).No.3083 of 2023 the accused other then the accused officers/Public servants. After the Hon'ble Supreme Court judgment in K.Veerasamy Vs. Union of India reported in 1991 3 SCC 655, the vigilance manual incorporated the provision in the vigilance manual in 76.2., to provide the opportunities to the accused officer to give the explanation for the final conclusion to be arrived by the investigating officer relating to the accumulation of the assets disproportionate to their known source of income, which reads as follows:
76.Final opportunity to be given to accused officers (DVAC Circular Memo No.23321/VAC-4/88, dated 26th August, 1988)
2) In cases where actionable material is found, after approval of the Final Report at the Headquarters, the Accused Officer should be given the final opportunity by the investigating officer, communicating to the Accused Officer in writing and under acknowledgement, the details of total income and total expenditure during the check period and the likely savings at the end of the check period, details of the properties and pecuniary resources found possessed as also the quantum of disproportion at the end of the check period, as worked out in Basic Statements I to V, asking him to explain, within a reasonable time, the disproportion in assets as determined against the Accused Officer. The format of the letter to be addressed to the Accused Officer in this regard 12/21 https://www.mhc.tn.gov.in/judis Crl.OP.(MD).No.3083 of 2023 will be proforma-28.
9. The petitioner is not a public servant and she was arrayed under the abetment charge and therefore, there is no requirement to issue final opportunity notice to the petitioner.
10. Primordial submission of the learned Senior Counsel for the petitioner/accused is that once the final opportunity notice is issued to the accused, either she is a public servant or not, the investigating officer is to form opinion upon consideration of the material furnished by the accused. “The consideration is to be meaningful” and therefore, the learned senior counsel submitted that the prayer was made in such a way to consider the material submitted by the accused to form opinion on the basis of the materials. The learned State Public Prosecutor submitted that the investigating officer's final report is only a opinion. In the case of the disproportionate assets, it is the duty of the accused to prove her known source of income before the trial Court and satisfactorily account for the accumulation of the income. The investigation officer collected the materials of the accused and produced before the trial Court to arrive at the conclusion with a specific finding. Therefore, he raises the objection to the petitioner's prayer. Before considering the submission of the 13/21 https://www.mhc.tn.gov.in/judis Crl.OP.(MD).No.3083 of 2023 learned senior counsel and the learned State Public Prosecutor, it is relevant to remember the principles laid down by the Honourable Supreme Court in the case of K. Veeraswami v. Union of India, (1991) 3 SCC 655 at page 715
75. In the view that we have taken as to the nature of the offence created under clause (e), it may not be necessary to examine the contention relating to ingredient of the offence. But since the legality of the charge-sheet has been impeached, we will deal with that contention also. 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 14/21 https://www.mhc.tn.gov.in/judis Crl.OP.(MD).No.3083 of 2023 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.
11.From the above, it is beyond doubt that the argument of the learned senior counsel for the accused that the investigating officer is to form opinion on the basis of the material adduced by her is against the above ratio laid down by the Hon'ble Supreme Court.
15/21 https://www.mhc.tn.gov.in/judis Crl.OP.(MD).No.3083 of 2023
12. In addition to that, the “known source of income” according to the interpretation from the Hon'ble Supreme Court is that sources known to the prosecution. It is the duty of the prosecution to prove that the accused or any other person on his behalf, has been in possession of the pecuniary resources or property disproportionate to his known source of income. Then it is for the accused to “satisfactorily account” for the said disproportionate asset. In that process, she must establish their known source of income which is specially within their knowledge as per Section 106 of the Indian Evidence Act. Therefore, in view of the above said legal position, the submission of the learned senior counsel for the petitioner that the investigating officer should consider the above aspect amounts to discharge of judicial function which is against the scheme of the Criminal Procedure Code.
13. The function of the investigating officer is merely to collect the evidence and produce before the Court for its conclusion either to convict or acquit. Giving Final Opportunity Notice before filing of final report is a useless formality. The said useless formality theory cannot stretch to the extent of leaving to the determination of guilt of the accused at the hands of the Investigating Officer. The guilt of the accused can be set aside only by the Court. 16/21 https://www.mhc.tn.gov.in/judis Crl.OP.(MD).No.3083 of 2023 In the said circumstances, the argument of the learned senior counsel that the investigating officer is duty bound to consider and arrive at a conclusion on the basis of the material produced by the accused deserves to be rejected and the same is not the requirement of law as laid down by the judgment in K.Veeraswami Vs. Union of India reported 1991 3 SCC 655 in and State of Maharastra Vs. Ishwar Piraji Kalpatri and others reported in 1996 (1) SCC 542 and 2009 15 SCC 533.
14.The learned senior counsel relied the judgment of the Honourable Supreme Court reported in 2023 2 SCC 353 in the case of the Manoj and others Vs. State of Madhya Pradesh, 2022 SCC online SC 1692 and 2021 2 SCC 353. In the above judgments, it is clearly stated that it is the duty of the investigating officer to furnish all the documents whether, forms part of the documents under Section 207 of Cr.P.C., or collected immaterial documents according to the view of the investigating officer. The Honourable Supreme Court in the above judgments clearly laid down the law that the duty of the investigating officer is to furnish a detailed report of the unrelied documents by the investigating agency to form the opinion relating to the offence for which, they conducted the investigation. In the said circumstances, the learned senior counsel's argument 17/21 https://www.mhc.tn.gov.in/judis Crl.OP.(MD).No.3083 of 2023 that on the basis of the above said judgment, it is the duty of the investigating officer to act upon the document and give a finding that the petitioner has not committed any offence under Section 13(1)(e) of the Prevention of Corruption Act, namely they have not committed any offence of disproportionate of asset is not accepted. Even though they collect number of the materials whether in favour of the accused or not, the investigating officer has to disclose the said unrelied documents before the Court below. Only to that extend, the law has been laid down by the Honourable Supreme Court in the above stated cases.
15.Apart from that there is specific provisions under Prevention of Corruption Act, which imposed duty on the accused to disclose the list of the documents and witness to be examined and produced on his side. The said specific provision is intended to give sufficient opportunity to the public servant, who is facing charges under the Prevention of Corruption Act. As per the said provisions, it is open to the petitioner to produce all the documents before the learned trial Judge and establish his defence that he has satisfactorily accounted for the income and there was no accumulation of disproportionate assets. 18/21 https://www.mhc.tn.gov.in/judis Crl.OP.(MD).No.3083 of 2023
16. This Court after issuing notice in this case, directed the investigating officer to file the report. The police officer produced the same in a sealed cover. This Court perused the report. As per the report of the investigating officer, the investigating officer also considered the said explanation and found that there was no difference in the accumulation of the disproportionate assets arrived at by them and hence, this Court finds no merit in the prayer in all aspects.
17. Accordingly, this Criminal Original Petition is dismissed with direction to file a final report within a period of two months from the date of receipt of a copy of this order.
19.03.2024 NCC : Yes/No Index : Yes/No Internet: Yes/No dss/vsg 19/21 https://www.mhc.tn.gov.in/judis Crl.OP.(MD).No.3083 of 2023 To
1. The Inspector of Police, Vigilance and Anti Corruption, Madurai – 625 002.
2. M.Sathyaseelan, The Deputy Superintendent of Police, Vigilance and Anti Corruption, Madurai.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
20/21 https://www.mhc.tn.gov.in/judis Crl.OP.(MD).No.3083 of 2023 K.K.RAMAKRISHNAN, J.
dss/vsg Crl.OP(MD)No.3083 of 2023 19.03.2024 21/21 https://www.mhc.tn.gov.in/judis