Mr. K. Ramaswami, learned counsel for the petitioner, would emphatically contend that there must be some inbuilt procedure by which the investigating officer must be compelled to acknowledge documents produced by the accused during investigation, so that the plea of the accused at the earliest point of time, would be on record. Quite often we come across the accused claiming to have entrusted documents with the investigating agency, while the latter deny such receipts. The problem relates to assert by one party and denial by other party, which again may have to be tested during the course of trial. It will always be better that acknowledgments are given by the investigating agency if, in fact, documents are handed over by the accused, for fairness in procedure will thereby be reflected. We cannot also ignore false claims made in certain cases, that documents had been handed over to the investigating officer while, in fact, it was not so done. Civic conscience must develop, to put an end to this grievance. The argument based on the provisions of Benami Transactions (Prohibition) Act, 1988 has to be stated only to be rejected. The Act has a purpose behind it, to prohibit benami transactions and to prohibit any claim, suit or action by or on behalf of a person claiming to be real owner of such property. Section 3 of the Act, which prohibits any person from entering into a benami transaction, provides that it shall not apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed unless the contrary was proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter. The Benami Transactions (Prohibition) Act, 1988, will not erase the offence under Section 5(1)(e) of the Act, if it is remembered that the burden of showing that a particular transaction is benami and the owner was not the real owner always vested on the person asserting it to be so and this burden has to be strictly discharged by adducing legal evidence of a definite character, which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. As observed by the Supreme Court in Krishnanand v. State of M.P., , the essence of benami is the intention of the parties and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises as a substitute for proof. The Benami Transactions (Prohibition) Act is intended to prevent fraud and not to perpetuate it. A man cannot take advantage of his own wrong and plead for exclusion by attempting to frustrate the objects behind Section 5(1)(e) of the Act. The Benami Transactions (Prohibition) Act, and the Prevention of Corruption Act operate in different fields. I am unable to accept the contention that under Section 5(1)(e) of the Act the petitioner cannot be asked to explain the source for the fixed deposits found in the name of his wife and unmarried daughter. The petitioner certainly has no opportunity during trial to disprove the allegations made by the prosecution. This contention is not acceded to.
1. The Petitioner in Crl.R.C. No. 465 of 1988 and Crl.M.P. No. 6501 of 1988 is the same. The revision has been filed, challenging the order of the IX Additional Sessions Judge (Special Judge) Madras, passed in Crl.M.P. No. 4475 of 1988 in C.C. No. 21 of 1987, refusing to discharge the Petitioner and consequently framing a charge, against the Petitioner for an offence punishable under Section 5(1)(e) read with Section 5(2) of the Prevention of Corruption Act 1947, hereinafter called, the Act. In Crl.M.P. 650 of 1988 the paryer is to call for the records in C.C. No. 21 of 1987 of the file of the IX Additional Sessions Judge (Special Judge), Madras, and quash the proceedings therein, as not maintainable and an abuse of process of Court. In the revision as well as the miscellaneous petition, the petitioner M. S. Kuppuswami has raised almost identical grounds.
2. In Crl.M.P. No. 13294 of 1989, the petitioner Thangiah, who is the accused in C.C. No. 26 of 1986 pending on the file of the IX Additional Sessions Judge (Special Judge) Madras, has invoked the inherent jurisdiction of this Court, to call for the records and quash the proceedings in the aforestated calendar case, as not maintainable an and abuse of process of Court. The Petitioner in this Petition is being prosecuted for an offence punishable under Section 5(1)(e) read with Section 5(2) of the Act.
3. In Crl.M.P. No. 13361 of 1989 the Petitioner D. Krishnamoorthy has made a similar prayer to call for the records in C.C. No. 22 of 1986 pending on the file of the same Court, where he is accused of having committed an offence punishable under Section 5(1)(e) read with Section 5(2) of the Act.
4. P. Sathya Harinath, the Petitioner in Crl.M.P. No. 13297 of 1989 has prayed for the halting of investigation in R.C. No. 14 of 1987 on the file of S.P.E., C.B.I., Madras and quash the F.I.R. registered against him for an offence punishable under Section 5(1)(e) read with Section 5(2) of the Act.
5. In all these Petitions, a common question as regards jurisdiction of the S.P.E., C.B.I., Madras, to register and investigate an offence, under section 5(1)(e) read with Section 5(2) of the Act, has been raised, since the offence had not been notified under Section 3 of the Delhi Special Police Establishment Act, 1946, and further the consent of the State Government had not been obtained after the introduction of Section 5(1)(e) in the Act, with effect from 18-12-1964.
6. Certain other grounds relating to facts and law have been taken in Crl.R.C. 465 of 1988 and Crl.M.P. No. 6501 of 1988, which may have to be considered separately, after answering the main issue involved in all these Petitions.
7. In Crl.M.P. Nos. 13294, 13297 and 13361 of 1989, Mr. G. Krishnan, learned counsel appearing for the Petitioner, in each one of these cases, specifically represented, that except the common ground of challenge he was not urging any other ground regarding the merits of the case. The facts, leading to the prosecutions, in these Petitions, need not have to be stated, in view of the specific stand taken by the learned counsel for the Petitioner.
8. FACTS IN CRL.R.C. No. 465 of 1988 and Crl.M.P. No. 6501 of 1988 :- The Petitioner joined the Customs Department as a Lower Division Clerk in 1956 and was promoted as a Preventive Officer in 1974. During the period 1980 to 1985., he worked in various places in his capacity as a Preventive Officer, Bond Officer, Custodian of Articles in Customs Warehouse and Preventive Officer at the Customs House and at Air Cargo Complex, Madras. A case was registered on 19-8-1985 against the Petitioner and during the course of investigation, he was found in possession as on 31-8-1985, of assets disproportionate to his known sources of income, to the extent of Rs. 2,28,682.86, for which he was not able to satisfactorily account.
9. Mr. K. Ramaswami, learned counsel appearing for the Petitioner in Crl. 465 of 1988 and Crl.M.P. No. 6501 of 1988 has formulated the following questions for decisions :-
(1) The respondent derives power and jurisdiction to investigate any offence against Central Government Servants, working within the territorial limits of any State, under Sections 2, 3, 5 and 6 of the Delhi Special Police Establishment Act, (Act XXV 1946). Section 2 empowers the Central Government to constitute a Special Force called the Delhi Special Police Establishment for investigation of offences notified under Sec. 3 of the Act. Section 3 of the Act stipulates, specifying, by the Central Government, of the offences or classes of offences, to be investigated by the Special Police Establishment, by means of a notification in the Official Gazette. Section 5 of the Act (Act XXV of 1946) relates to extension of powers and jurisdiction of Special Police Establishment to other areas. Section 6 lays down, that without the consent of the State Government the members of the S.P.E. cannot exercise their powers and jurisdiction in that State, even if their powers and jurisdiction had been extended by the Central Government under Section 5, to any area in that State, in respect of any offence notified under Section 3 of the Act. The last notification in and by which offences under the prevention of Corruption Act, 1947, were notified under Sec. 3 of the Delhi Special Police Establishment Act, is dated 18-12-1963. At that time Section 5(1)(e) was not included as an offence in the Act, but Section 5(3) of the Act was there in the nature of a legal presumption, to be used as an aid, when dealing with offence under Sec. 5(1)(a) to (d). With effect from 18-12-1964 Section 5(3) was deleted and a new offence in Section 5(1)(c) was added to the statute and this new offence was made punishable under Sec. 5(2) of the Act. Subsequent to the amendment, there has been no notification under Section 3 of the Delhi Special Police Establishment Act, notifying Section 5(1)(e) of the Act, as an offence, which can be investigated by the Special Police Establishment. Further the 1947 Act, after its amendment in 1964, was also not notified, in any subsequent notification. Similarly no order was issued by the Central Government under Section 5 of Act XXV of 1946 after the above date, extending the power and jurisdiction of the S.P.E., to investigate the offence under Section 5(1)(e) of the Act in the State of Tamilnadu. The requirement of Section 6 of the Act XXV of 1946, of obtaining the consent of the State Government, to acquire powers to investigate the offence under Section 5(1)(e) of the Act was also never specifically ought or obtained. Therefore, in the absence of notification and any order under Sections 3 and 5 of Act XXV of 1946, no question of obtaining consent from the State of Tamilnadu will arise. The consent letter dated 20-11-1981 given by the State of Tamilnadu cannot cover S. 5(1)(e) of the Act, since the annexure thereto, makes no reference to any fresh notification issued under Section 3 of the Act XXV of 1946, after 18-12-1964;
(2) The Collector of Customs, who had accorded sanction to prosecution, had taken part in the investigation in that he had been asked to collect property statement. Therefore, the sanctioning authority cannot be taken to be one with unbiased views. The exercise of power to grant sanction must be uncontaminated and if taint was evident, the sanction would stand vitiated. On facts, it was clear that the sanctioning authority ceased to have a dispassionate mind;
(3) The investigation was not in accordance with law. Though it may be open to the prosecution to select a check period, if the basis for such reckoning was not fair, it would offend Art. 21 of the Constitution. Further, after the introduction of the Benami Transactions (Prohibition) Act, 1988, (No. 45 of 1988), the accused cannot be asked to account for the property in the name of another and seeking to elicit explanation, will be oppressive. Even at the investigation stage, the Investigating Officer will not be competent to omit explanation offered by the accused and restrict the enquiry to the check period alone. To that extent, the prosecution will not be in accordance with the procedure established by law. Illegality in investigation will affect the jurisdiction of the Court to take cognizance; and
(4) The sanction accorded to prosecute the Petitioner clearly shows, that the allegations in the charge sheet have been repeated and the final paragraph sanctioned prosecution. The mechanical accord of sanction, relegates it to a mere empty formality, without any sanctity attached to it.
10. The first contention is common to all the petitions while contentions 2 to 4 will be restricted to Crl.R.C. No. 465 of 1988 and Crl.M.P. No. 6501 of 1988.
11. Mr. B. Sriramulu, learned counsel appearing for the respondent, in reply to the submissions made by the learned counsel appearing for the Petitioners, contended, that even though Section 5(1)(e) was added subsequently, the previous notification will govern the subsequent addition also, since the entire Act was covered under it. All offences under the Prevention of Corruption Act, 1947, as amended in 1964, must be deemed to have been notified. Section 5(1)(e) of the Act is punishable under Section 5(2) of the Act. The penal section was in existence when the notification in G.S.R. No. 305, dated 18-2-1963 was made, in exercise of the powers conferred under Section 3 of Act XXV of 1946 and the relevant portion refers to offences punishable under the Prevention of Corruption Act, 1947. On a same partity of reasoning, the consent accorded in 1963, should be held to govern Section 5(1)(e) of the Act, vesting jurisdiction with the Special Police Establishment, though Section 5(1)(3) was introduced later. Large classes of public servants were brought under the net with effect from 18-12-1964. The notification refers specifically to offences under the Indian Penal Code, while the prevention of Corruption Act, 1947, has been notified as a whole. A Full Bench of his Court had gone into this question and held in favour of the prosecution.
12. The Collector of Customs had not taken part in the investigation. As a statutory authority, a duty was cast upon him to find out facts. A copy to the first information report is sent to the Collector of Customs, in the usual course. In the prosecution relating to M. S. Kuppuswami, Petitioner in Crl.R.C. No. 465 of 1988 and Crl.M.P. No. 6501 of 1988, the Collector of Customs had not sent any notice and at this stage, there was no material to show, that the Collector of Customs had participated in the investigation. The plea of bias is totally unwarranted. It will be erroneous to except the prosecution, to disprove as well, the existence of possible sources of income of the Public Servant. The wife and daughter of Kuppuswami were examined and statements recorded from several witnesses, during investigation, were taken note of before a final report was filed, that the Petitioner possessed assets, pecuniary resources or property disproportionate to his known sources of income, which he was not able to satisfactorily account. The Benami Transactions (Prohibition) Act, 1988, (No. 45 of 1988) has a purpose behind it, to prohibit benami transactions. The provisions of the said Act cannot erase or nullify the offence allegedly committed by the Petitioner, M. S. Kuppuswami. The sanction accorded is in consonance with law and the accused need not be heard before the grant of sanction. Merely because the statements of facts, have been repeated in the sanction order, it cannot be argued, that there was non-application of mind, for the final paragraph in the order shows that position contra. The investigating agency was not expected to anticipate all possible defences, while discharging its onus, of placing before Court prima facie material, sufficient enough to initiate prosecution.
12A. The learned counsel for the Petitioners as well as the learned counsel for the respondent sought support for their respective pleas by citing authorities which, I will consider at the relevant context.
13. The first question may not require serious scrutiny, since the very same question was considered by a Full Bench of this Court in K. Veeraswami v. Union of India, 1979 Mad LW (Cri) 64 (Short-Notes). The majority judgment was delivered by Mohan, J. as he then was, for himself, and S. Natarajan, J., as he then was, Balasubramaniam, J., dissented with the majority view on certain points, while concurring with Mohan, J., on the same aspects. In answer to question 3, the Full Bench observe as follows :-
"From these authorities, (set out below), it can be inferred that Section 5(1)(e) constitutes a distinct form of the offence of criminal misconduct. It may also be observed in this connection that it cannot be interpreted as a mere rule of evidence, because, unless a person has been charged under other sub-sections 5(1)(a) to (d) the presumption under old S. 5(3) cannot arise while under the present section there can be an independent charge under S. 5(1)(e). Nevertheless, what requires to be carefully observed is that the notification may relate either to offences or classes of offences under Section 3 of the Delhi Special Police Establishment Act. What has been notified in a class of offence punishable under the Prevention of Corruption Act. This is in contrast of the offence made punishable under the Penal Code under Specific Sections. If so, construed as the Petitioner wanted to do, the distinction between an offence and class of offence gets obliterated. Therefore, we hold that the act of deliberation or the exercise of mental power by the State Government, which is involved in a consent, is not necessary in this case."
The Full Bench was considering the notification made by the Central Government when the offence under Sec. 5(1)(e) of the Prevention of Corruption Act, had not yet come into the statute book, as well as the letter of consent of the State Government dated 27-6-1963. The consent given by the Tamilnadu Government after 1964 was also taken note of by the Full Bench.
14. In the additional set of typed papers filed by the learned counsel for the Petitioner in Crl.R.C. No. 465 of 1988 and Crl.M.P. No. 6501 of 1988 in page 1, Notifications of the Central Government under Section 3 of the Delhi Special Police Establishment Act, 1946, have been listed chronologically, Notification No. 7/5/55-AVD, dt. 6-11-1956, under Clause (b) has included offences punishable under the prevention of Corruption Act, 1947. Notification No. 25/12/1962-AVD I dated 18-2-1963 under clause (b) has included offences punishable under the Prevention of Corruption Act, 1947. Subsequently notifications, dt. between 1-4-1964 and 11-8-1980 do not concern themselves with the provisions of the Prevention of Corruption Act, 1947. In page 6 of the set of Papers, a letter dt. 20-11-1981 addressed by the Commissioner and Secretary to Government of Tamilnadu to the Secretary to the Government of India, D.P. & AR. Cabinet Secretariat, New Delhi, shows that in supersession of the consent given on 18-5-1976 and other letters issued from time to time on the subject, the Tamilnadu Government had given their consent under Section 6 of the Delhi Special Police Establishment Act, 1946, in respect of (i) cases involving either Central Government Servants or Officers belonging to Public Sector Undertakings under the Central Government; and (ii) cases involving financial or other interests of the Central Government or Public Sector Undertakings under the Central Government, in relation to offence mentioned in the list of offences enclosed with the D.O. letter second cited. The D.O. letter second cited dt. 5-6-1972 was addressed by the Minister, Department of Personnel, Cabinet Secretariat, Government of India to the Chief Minister of Tamil Nadu. The list of offences notified has been typed in the subsequent pages (pages 8 to 14). Under the heading "Offences which the Delhi Special Police Establishment is competent to investigate in all States including Jammu and Kashmir and Union Territories", in clause (ii), the offences punishable under the Prevention of Corruption Act, 1947 (II of 1947) has been included. The argument is that after S. 5(1)(e) came into the statute book, this distinct offence, has not been specifically included by virtue of a notification and consent of the State Government was not specifically contained for this added offence. The list of notifications range between 1963 and 1970. Mr. K. Ramaswami, learned counsel appearing in two of these petitions, with some hesitation submitted, that in respect of classes of offences, falling within the fold of Section 3 of the Delhi Special Police Establishment Act, 1946, the Full Bench decision of this court may require re-consideration. He pointed out the observations of Balasubramaniam, J., in the dissenting judgment to gain support for his plea. The observations runs as hereunder :-
"The next point raised by Mr. Venugopal for the petitioner is that when the Central Government made the notification in 1956, the offence under Section 5(1)(e) of the Prevention of Corruption Act, 1947, had not yet come into the statute book, it having been introduced by way of amendment only on 18th December, 1904. The question, however, may be decided simply, as a matter of construction of the letter of the Tamil Nadu Government, dt. 27th June, 1963. This letter of consent, no doubt, was issued after S. 5(1)(e) of the Prevention of Corruption Act came into force. The language of the letter giving consent is however peculiar ....
Hence even though the Tamil Nadu Government gave its consent after 1964, the terms of their consent were the same as their pre 1964 consent. This being so it would be proper to hold that the officers of the special police Establishment can have no jurisdiction to investigate and prosecute offence under S. 5(1)(e) of the Prevention of Corruption Act in Courts in Tamil Nadu."
I am unable to accept this submission, for I am bound by the law laid down by the Full Bench. Further, a reference to the judgment of the Supreme Court in State of M.P. v. M. V. Narasimhan, , may be relevant. The Apex court while considering insertion of the twelfth clause in Section 21 of the Indian Penal Code by virtue of Criminal Law Amendment Act, 1958, and the substitution of clause 12 to Section 21 of the Indian Penal Code, by virtue of the Anti-Corruption Laws (Amendment) Act, 1964 (Act No. XL of 1964) vis-a-vis Section 2 of the Prevention of Corruption Act, 1947 observed as follows :-
"Having regard to the preamble and the object of the 1947 Act and the Penal Code, there can be no doubt that the Act was a statute supplemental to the Penal Code. Therefore, the definition of 'public Servant' borrowed from Section 21 of the Penal Code must be read into Section 2 of the Act not only at the time when it was borrowed (i.e. 1947) but even at the material date when the offence is committed. This being the position, it is manifest that, by virtue of the amendments, of 1958 and 1964 which inserted twelfth clause to S. No. 21 of the Penal Code, an employee of the Heavy Electricals (India) Ltd., Bhopal, Committing an offence under the 1947 Act after 1964, clearly comes within the meaning of "Public servant" further, the Prevention of Corruption Act, being a 'social legislation, its provisions must be liberally construed so as to advance the object of the Act. This can only be done if an extended meaning is given to the term "public servant" as referred to in Section 2 of the Act by applying the enlarged definition contained in clause 12 inserted in the penal code by the two amendments referred to above."
15. As rightly contended by Mr. B. Sriramulu learned counsel appearing for the respondent, an amendment to the Indian Penal Code can only be made by the Parliament while a notification would be sufficient in respect of investing powers under the Delhi Special Police Establishment Act. The notification under section 6 of the Act, includes all offences under the Prevention of Corruption Act and naturally Section 5(1)(e) introduced by Act 40 of 1964, being an offence under the Prevention of Corruption Act punishable under Section 5(2) of the Act, gets within the fold of the notification, investing powers to the Delhi Special Police Establishment, to investigate offences under the Prevention of Corruption Act. The notifications which forms part of pages 8 to 14 of the typed set of papers shows that the Government was aware of offences and classes of offences, while notifications were issued. I hold that the notification related to offences punishable under the Prevention of Corruption Act, Section 5(2) being the penal Section and though Section 5(1)(e) was added subsequently, the previous notification will govern the subsequently added section also, since the previous notification, covers the entire Act. The question of consent of the Tamil Nadu State Government need not detain us, since the Full Bench of this Court has settled the law, on this issue. I am unable to agree that merely because Sec. 5(1)(e) of the Act has been held to be a distinct offence, it must be separately notified and the Prevention of Corruption Act also must have been notified after the introduction of Section 5(1)(e) in the Act. The decision in State of Maharashtra v. K. K. S. Ramaswamy, and K. V. Gnanasambandam v. State of Tamil Nadu, 1984 Cri LJ 1903 (Mad) which hold that Section 5(1)(c) of the Act was a distinct offence does not alter the situation. The Full Bench of this Court in K. Veeraswami's case 1979 Mad LW (Cri) 64 (SN) both the majority and the dissenting Judges, took the view that the offence under Section 5(1)(e) was distinct. The first contention is, therefore, rejected.
16. On the second ground, the learned counsel for the petitioner, would strenously contend, that the Collector of customs, the sanctioning authority, had taken part in the investigation, since the petitioner was asked to file his property statement. A reference was made to the memo issued to the petitioner, dt. 2-12-1985, by the Deputy Collector of Customs which read as follows :-
"Shri M. S. Kuppuswami, P.O.T. is hereby required to fill in the enclosed forms I to VI for furnishing the details of his assets held during the period 1-1-1980 to 31-8-1985, under Rule 18(4) of the Central Civil Services (Conduct) Rules 64 and return the same to the undersigned within a fortnight from the date of receipt of this memo."
It was submitted, that the check period chosen by the investigating agency, has been stated in the memo and the Forms I to VI which were forwarded for furnishing details, appeared to have been printed, for the C.B.I., probabilising those forms having been forwarded by the investigating agency to the Collector of Customs, to facilitate the latter obtaining information from the petitioner to be used for the purpose of investigation. The reply of the petitioner to the Deputy Collector of Customs and further memos issued by the Asstt. Collector of Customs were also sought to be relied upon to impress upon the Court, that the Deputy Collector of Customs and the Assistant Collector of Customs must have acted under the directions of the Collector of Customs and the words used in one of the memos "legal acquisition of these assets" would indisputabley indicate the hand of the police behind the issue of these memos. It was also mentioned in passing, that in the last Page of Forms I to VI, the words" A.C. 36 of 1985" had been written. In specific reply to this argument, the learned counsel for the respondent, contended that a copy of the first information report, in the usual course, was forwarded to the Collector of Customs. Further the Collector of Customs was the statutory authority to hold departmental proceedings and a duty was cast upon him to find out facts. The Collector had to fulfill a statutory obligation under the Central Civil Service (Conduct) Rules and the performance of his duty cannot be equated, to a role taken during investigation of the crime. The Collector of Customs had not sent any notice to the petitioner and even the memo calling upon the petitioner to furnish details of the assets was issued by the Deputy Collector of Customs. In support of his contention of what bias could be, the learned counsel for the petitioner relied upon the decision of the Gujarat High Court in Mumkum Prakasham v. State , P. R. Gogulakrishnan J., speaking on behalf of the Division Bench observed that there was no need for actual proof of prejudice, but it was enough that there was a reasonable suspicion in the minds of those who were aggrived by the presence of a particular individual in the committee. Stress was laid upon 'reasonable suspicion". Since every suspicion cannot be considered 'reasonable'. The court had to see if there was any reasonable suspicion by the party concerned which would spell out 'bias' on the part of some members of the Committee in the Selection. The Court was concerned with bias in Government contract in respect of supply of books. In the Committee for selection of books, the daughter of one of the authors was a member. The other member was the Registrar of Sahitya Academy. Books written by Vice Chairman of the Academy were also put up for selection. While quashing the selection of books by the Committee awarding contracts to the said two authors for supply of books, the earlier observations were made by the Gujarat High Court. The question of bias is a matter of evidence. The correspondence between the petitioner and certain officials of the Collector of Customs, have not been brought in evidence and this Court, in the exercise of its inherent powers, cannot look into these documents, whose genuineness is yet to be established. The court will not be called upon at this stage to look into the documents, which the defence proposes to rely upon either for exoneration or imputing bias to the sanctioning authority. At this stage, learned counsel for the petitioner urged, that since a revision against the order of discharge was also being decided by this court, the correspondence sought to be relied upon by the petitioner can be looked into. In support of his argument, he cited the decision of the Karnataka High Court in Thirtharaj Upendra Joshi v. State of Karnataka, 1983 Cri LJ 318. While considering Sections 239 and 240 of Crl.P.C. it was held, that the accused while addressing arguments before the Magistrate, had filed a list of documents in support of his arguments, that he was a partner of the firm in which the complainant was also one of the partners. The Magistrate had not even referred to the documents before directing framing of a charge under Section 379, I.P.C. Not adverting to the documents filed by the accused, before ordering framing of a charge amounted to not giving sufficient opportunity contemplated under Section 239, Cr.P.C. This view of the Karnataka High Court, had been taken note of by Ratnavel Pandian O.C. J. he then was, in Angusami v. Kalesswaran Ambalam, 1989 Mad LW (Cri)
108. The learned Judge held as follows :-
"This stage of Section 239 of the Code prior to the framing of the charge under Section 240 of the Code, is not expected to be a dress rehearsal of a trial. The Magistrate, at that stage is required to consider the police report and the documents sent along with it under Section 173 which are furnished to the accused in compliance with Section 207 of the Code and the explanation given by the accused during his examination and the submission, if any, made by the prosecution and the accused for finding out whether the charge, which means the accusation, levelled against the accused is groundless. At that stage, as rightly pointed out by the learned single Judge of the Delhi High Court in Surinderkumar Yadev's case (1986) 3 Crimes 645, it is not open to the Magistrate to consider any other document, which is not covered by the provisions of Section 207 of the Code, and the examination of the accused, if any, under that provision must necessarily be with regard to the material placed by the prosecution against him and the documents referred to under Section 207, Cr.P.C., but the documents produced by the accused are not to be taken into consideration by the Magistrate while applying his mind whether the accusation levelled against the accused is groundless or not."
I am in respectful agreement with the view expressed by Ratnavel Pandian, O.C. J. The learned Judge while arriving at such a conclusion referred to the judgment of the Supreme Court in J. P. Sharma v. Vinod Kumar Jain, .
"In that case the Deputy Chief Controller of the Imports and Exports filed a complaint under Section 120B of the Indian Penal Code and S. 5 of the Imports and Exports (Control) Act against the accused persons there is no certain allegation. The Magistrate accepted the complaint and issued summons to the accused persons. Meanwhile there was a supplementary investigation made by the Central Bureau of Investigation (CBI). The accused preferred petitions under S. 482, Crl.P.C. for quashing the complaint on the ground that the materials collected by the CBI are relevant and if they were taken into consideration, there was no basis for the complaint. The Statement of the accused was opposed by the Government on the ground that the materials collected during the Investigation were not relevant and necessary for the complaint launched by the Deputy Chief Controller of Imports and Exports. The Delhi High Court, however, quashed the complaint. As against that order, a Criminal appeal was preferred before the Supreme Court. The Supreme Court while examining the legality of the order of the High Court has stated :
"The question at this stage is not whether there was any truth in the allegation but the question is whether on the basis of the allegations, a cognizable offence or offences had been alleged to have been committed. The facts subsequently found out to prove the truth or otherwise of the allegation is not a ground on the basis of which the complaint can be quashed."
Therefore, it is apparent that on the principles laid down in J. P. Sharma v. Vinod Kumar Jain, at the stage of Section 209, Cr.P.C., there is no question of adding or substracting anything or considering any extraneous matter other than the documents forwarded to the Court as contemplated under Section 173, Cr.P.C., and furnished to the accused under Section 207, Cr.P.C., besides examining the accused and affording an opportunity, both to the prosecution and the accused of being heard. Therefore either in the exercise of inherent powers or the revisional powers at this stage, the documents sought to be brought on record by the defence cannot be looked into. If the petitioner is able to satisfy the trial court on the evidence adduced, that there was a bias, in according of sanction, he will be at liberty to urge this contention before the trial Judge. The second contention necessarily fails.
17. While arguing on the legality of investigation Mr. K. Ramaswami strenuously contended that Section 3(1)(3) of the Act did not impose a check period. The wording of section did not give an arbitrary right to the investigating officer to choose a check period. The fact of possession can relate to a date, but the known source of income must date back to the assumption of office by the public servant. This question was also considered by the Full Bench of this court in K. Veeraswamy v. Union of India, 1979 Mad LW (Cri) 64 (Short Notes). It is better to extract the observations therein :
"Mr. K. K. Venugopal draws our attention to the charge-sheet and then contends that what is averred thereunder is the period between 1-5-1969 when the petitioner became Chief Justice and 24-2-1976 when he demitted office. He is alleged to have been in possession of pecuniary resources disproportionate to his known sources of income over the same period and he cannot satisfactorily account for such disproportionate pecuniary sources or property. Therefore, according to him, a new offence is sought to be made out. It can be done so provided the S. 5(1)(e) permits, but not otherwise. 'At any time during the period of office' means at any stated time. But, the commencement must be from the date on which he became a public servant, and not by choosing an arbitrary date or period. By this process he is called upon to explain each and every acquisition which certainly is not the offence contemplated under this section.
The learned Advocate-General would state that the period is not an arbitrary period. It was on 1-5-1969 the petitioner became the Chief Justice and thereafter till he demitted such office he is called upon to explain the assets. 'At any time during the period of office' under S. 5(1)(b) of the Prevention of Corruption Act does not mean, right from the inception. Whatever sources are 'known to the prosecution' have been taken into account. If earlier sources have been left out, the prosecution has taken a risk. It is well open to the other side to prove that no disproportion exists as alleged by including those assets ....
In our view, these are details which are to be gone into during the time of trial and a detailed enquiry cannot be embarked upon at this stage. Suffice it to hold by selecting the period 1-5-1969 to 24-2-1976 no new offence is sought to be created, because a balance was struck on 1-5-1969 making that date as the period of commencement. If on the contrary, the sources known to the prosecution have been left out, the prosecution has taken a risk and it is not for us to say anything about the same, because we feel that it is a matter of evidence."
This is a complete answer to the choice of check-period.
18. In State of Maharashtra v. Pollonji Darabshaw,
the Supreme Court, while considering criminal misconduct under Section 5(1)(e) of the Act stated as follows (Paras 10 and 11) :-
"In order to establish that a public servant is in possession of pecuniary resources and property, disproportionate to his known sources of income, it is not imperative that the period of reckoning be spread out for the entire stretch of anterior service of the public servant. There can be no general rule or criterion, valid for all cases, in regard to the choice of the period for which accounts are taken to establish criminal misconduct under S. 5(1)(e). The choice of the period must necessarily be determined by the allegations of fact on which the prosecution is founded and rests. However, the period must be such as to enable a true and comprehensive picture of the known sources of income and the pecuniary resources and property in possession of the public servant either by himself or through any other person on his behalf, which are alleged to be so disproportionate .... The assets spilling over from the anterior period, if their existence is probabilised, would, of course, have to be given credit to on the income side and would go to reduce the extent and the quantum of the disproportion. It is for the prosecution to choose what according to it is the period which having regard to the acquisitive activities of the public servant in amassing wealth and characterise and isolate that period for special scrutiny ........
'Once the prosecution establishes the essential ingredients of the offence of criminal misconduct by proving, by the standard of criminal evidence, that the public servant is or was at any time during the period of his offence, in possession of pecuniary resources or property disproportionate to his sources of income known to the prosecution, the prosecution discharges its burden of proof and the burden of proof is lifted from the shoulders of the prosecution and descends upon the shoulders of the defence. It then becomes necessary for the public servant to satisfactorily account for the possession of such properties and pecuniary resources. It is erroneous to predicate that the prosecution should also disprove the existence of the possible sources of income of the public servant."
19. In the State of Maharashtra v. Wasudeo Ramachandra, , which was taken note of in the State of Maharashtra v. Pollonji Darabshaw, (supra), all that the
prosecution must prove to substantiate the charge to bring a case under S. 5(1)(e) of the Act was summarised as follows :-
"(1) It must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which were found in his possession, (3) it must be proved as to what were his known source of income i.e., known to the prosecution, and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income."
It was further observed, that once these four ingredients were established, the offence of criminal misconduct under Section 5(1)(e) was complete, unless the accused was able to account for such resources or property. The burden then shifted to the accused to satisfactorily account for his possession of disproportionate assets. Even in this case the Supreme Court took the view that the prosecution need not disprove all possible sources of the income of the accused. The expression 'known source of income' meant sources known to the prosecution. It is, therefore, premature for the petitioner to contend, that the check period has been arbitrarily chosen. As rightly pointed out by the Full Bench of this Court in K. Veeraswami's case, 1979 Mad LW (Cri) 64 (SN), if the prosecution, had left out sources known to the prosecution, it takes a risk and it was well upon to other side to prove that no disproportion existed. The argument that an impossible burden is cast on the accused which, the law does not allow, has to be outright rejected. I have carefully perused the report forwarded by the investigating officer to the Court along with the records and I am satisfied that the material found therein, would be sufficient to put the petitioner on trial. The argument of the learned counsel for the petitioner, that the petitioner could not have had any acquisitive activity between May, 1981 and July, 1984. In view of his having worked as a case File Officer in the Adjudication Unit, Bond Officer, Southern Sulphate and Chemicals (Private) Limited, Custodian of Valuables Ware House, Customs House, Madras, cannot be countenanced, for it relates to the realm of evidence. It will depend, on how a person interested in acquisition, will not, irrespective of the office he holds, at a particular point of time.
20. While commenting on the duties and responsibilities of the investigating agency to present a fair picture before the Court since in law, as observed by David Ankussamy, J. in D. Vedagiri, In Re, (1985 Mad LW (Cri) 243), the investigating officer owed a duty to give an opportunity to the accused to explain the disproportion found during investigation, which logically must take in its fold consideration of the explanation by the accused, and further investigation naturally had to be done by the officer, which must extend beyond the check period. The grievance of the petitioner is that the source of income out of the joint family property prior to 1-1-1980 had not been taken note of by the investigating officer and to that extent the prosecution suffered, in not having adhered to the procedure established by law. At this stage, it will not be possible to go into the merits of this argument, since it is apparent that during investigation the petitioner was called upon to explain the disproportion found by the investigating officer and thereafter the wife, daughter and the brothers of the petitioner, have been examined. The officials of the school where the daughter of the petitioner had studied as well as the college in which she pursued her further education have been examined. It was brought to my notice, by the learned counsel appearing for the respondent, that the accused when questioned by the investigating officer, had stated that his wife, and daughter were wholly dependent on him and his wife was not employed. Of course, the petitioner will have a right to challenge the statement during trial, but prima facie this statement cannot be excluded at present. The weight to be attached to the evidence of these witnesses will again relate to the stage of trial. A plea was made that the letter of Prema, wife of the petitioner, sent to the investigation officer should have been taken note of. At the risk of repetition, these matters which pertain to trial and open for cross-examination, of the investigating officer, cannot be gone into in these petitions. Once it has been held by the highest Court of the Land that the prosecution would be entitled to select a period for ascertainment of disproportionate assets, the argument of artificial dissection, the scope for the possible decrease in the unexplained assets will all have no bearing, while exercising inherent or revisional powers at a pre-trial stage.
21. Mr. K. Ramaswami, learned counsel for the petitioner, would emphatically contend that there must be some inbuilt procedure by which the investigating officer must be compelled to acknowledge documents produced by the accused during investigation, so that the plea of the accused at the earliest point of time, would be on record. Quite often we come across the accused claiming to have entrusted documents with the investigating agency, while the latter deny such receipts. The problem relates to assert by one party and denial by other party, which again may have to be tested during the course of trial. It will always be better that acknowledgments are given by the investigating agency if, in fact, documents are handed over by the accused, for fairness in procedure will thereby be reflected. We cannot also ignore false claims made in certain cases, that documents had been handed over to the investigating officer while, in fact, it was not so done. Civic conscience must develop, to put an end to this grievance. The argument based on the provisions of Benami Transactions (Prohibition) Act, 1988 has to be stated only to be rejected. The Act has a purpose behind it, to prohibit benami transactions and to prohibit any claim, suit or action by or on behalf of a person claiming to be real owner of such property. Section 3 of the Act, which prohibits any person from entering into a benami transaction, provides that it shall not apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed unless the contrary was proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter. The Benami Transactions (Prohibition) Act, 1988, will not erase the offence under Section 5(1)(e) of the Act, if it is remembered that the burden of showing that a particular transaction is benami and the owner was not the real owner always vested on the person asserting it to be so and this burden has to be strictly discharged by adducing legal evidence of a definite character, which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. As observed by the Supreme Court in Krishnanand v. State of M.P., , the essence of benami is the intention of the parties and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises as a substitute for proof. The Benami Transactions (Prohibition) Act is intended to prevent fraud and not to perpetuate it. A man cannot take advantage of his own wrong and plead for exclusion by attempting to frustrate the objects behind Section 5(1)(e) of the Act. The Benami Transactions (Prohibition) Act, and the Prevention of Corruption Act operate in different fields. I am unable to accept the contention that under Section 5(1)(e) of the Act the petitioner cannot be asked to explain the source for the fixed deposits found in the name of his wife and unmarried daughter. The petitioner certainly has no opportunity during trial to disprove the allegations made by the prosecution. This contention is not acceded to.
22. The sanction to prosecute does contain repetition of the acts, found in the charge-sheet. Merely because the narration of facts has been barrowed from the charge-sheet, it cannot automatically be concluded that there was non-application of mind before the sanction was accorded. It would certainly be better if, after going through the facts, the sanctioning authority himself, on his understanding of the case, gives a resume of facts in the order of sanction, without adopting to follow the very phraseology used by the investigating agency. A mere reproduction of words, as far as the facts of the case are concerned, cannot in all cases indicate lack of open mind. Sanction is not an empty formality but intended to be a protection to a public servant when prosecuted for an offence which challenges his honesty and integrity. The issue in such a case is not only between the prosecution and the offender, but the State as well, since it vitally concerned, for it tends to affect the morale of the public services and also the administrative interest of the State. The purpose of sanction being vested in a departmental authority is to provide an opportunity for assessment and weighing of the accusation in a dispassionate and responsible manner. Such an approach in the matter of according sanction must be apparent on the face of the record. It will be appropriate, that the order of sanction reflects the understanding of the facts by the sanctioning authority in his own way, not being put into a strait-jacket of repeating the facts put forth by the investigating agency. Sanction to prosecute must have sanctity attached to it, for the liberty of the person prosecuted is involved. However, on a perusal of the order of sanction, it is prima facie apparent, that the sanctioning authority had carefully examined the investigation report, copy of the F.I.R. search list, inventory reports, other documents covering the allegations, statement of witnesses, explanations offered by the petitioner placed before him with regard to the allegations and the circumstances of the case before allowing the prosecution to be instituted. During trial it will be still open for the petitioner to challenge the sanction order, but at this juncture it will not be possible to conclude on the mere repetition of facts, that there was non-application of mind and as a habitual exercise, sanction had been accorded.
23. The Supreme Court in Jaswant Singh v. State of Punjab, stated that "the sanction under the Prevention of
Corruption Act was not intended to be nor was an automatic formality and it was essential that the provisions in regard to sanction should be observed with complete strictness. The object of the provision for sanctions is that the authority giving the sanction should be able to consider for itself the evidence before it comes to a conclusion that the prosecution in the circumstances be sanctioned or forbidden. It should be clear from the form of the sanction that the sanctioning authority considered the evidence before it and after a consideration of all the circumstances of the case sanctioned the prosecution, and therefore, unless the matter can be proved by other evidence, in the sanction itself the facts should be referred to indicate that the sanctioning authority had applied its mind to the facts and circumstances of the case. It was not for him to look into extraneous records to form an opinion to accord or reject sanction. This ground also does not enure in favour of the petitioner.
24. However, a plea was made by Mr. K. Ramaswamy, learned counsel appearing for the petitioner, that a direction may be issued to the trial court to examine the witness expected to prove sanction as the first witness for the prosecution. To this course, the prosecution has no objection. The prosecution in the normal course must be allowed to use its discretion, in choosing the serial order in which its witnesses have to be examined. There can be no impediment in examining the witness expected to prove the sanction order initially, since such a course is agreeable to the prosecution as well. If the sanction were to be challenged on the question of bias alone which certainly is a question of fact, and not on any legal invalidity, a word of caution is necessary that the trial should not be halted in its track. I do not find any infirmity in the order of the trial court in having rejected the plea of discharge made by the petitioner and having ventured to frame an appropriate charge. Cr.R.C. 465 of 1988 and Cr.M.P. 6501 of 1988 are dismissed with the above observations. Cr.M.P. 13294, 13297 and 13361 of 1989 are dismissed, since the power and jurisdiction of the S.P.E. to investigate offences under Section 5(1)(e) of the Act has been upheld.
25. Petition dismissed.
Print Page
Madras High Court
M.S. Kuppuswami And Etc. Etc. vs The State on 11 July, 1990
Equivalent citations: 1992 CriLJ 56
Bench: T Arunachalam
1. The Petitioner in Crl.R.C. No. 465 of 1988 and Crl.M.P. No. 6501 of 1988 is the same. The revision has been filed, challenging the order of the IX Additional Sessions Judge (Special Judge) Madras, passed in Crl.M.P. No. 4475 of 1988 in C.C. No. 21 of 1987, refusing to discharge the Petitioner and consequently framing a charge, against the Petitioner for an offence punishable under Section 5(1)(e) read with Section 5(2) of the Prevention of Corruption Act 1947, hereinafter called, the Act. In Crl.M.P. 650 of 1988 the paryer is to call for the records in C.C. No. 21 of 1987 of the file of the IX Additional Sessions Judge (Special Judge), Madras, and quash the proceedings therein, as not maintainable and an abuse of process of Court. In the revision as well as the miscellaneous petition, the petitioner M. S. Kuppuswami has raised almost identical grounds.
2. In Crl.M.P. No. 13294 of 1989, the petitioner Thangiah, who is the accused in C.C. No. 26 of 1986 pending on the file of the IX Additional Sessions Judge (Special Judge) Madras, has invoked the inherent jurisdiction of this Court, to call for the records and quash the proceedings in the aforestated calendar case, as not maintainable an and abuse of process of Court. The Petitioner in this Petition is being prosecuted for an offence punishable under Section 5(1)(e) read with Section 5(2) of the Act.
3. In Crl.M.P. No. 13361 of 1989 the Petitioner D. Krishnamoorthy has made a similar prayer to call for the records in C.C. No. 22 of 1986 pending on the file of the same Court, where he is accused of having committed an offence punishable under Section 5(1)(e) read with Section 5(2) of the Act.
4. P. Sathya Harinath, the Petitioner in Crl.M.P. No. 13297 of 1989 has prayed for the halting of investigation in R.C. No. 14 of 1987 on the file of S.P.E., C.B.I., Madras and quash the F.I.R. registered against him for an offence punishable under Section 5(1)(e) read with Section 5(2) of the Act.
5. In all these Petitions, a common question as regards jurisdiction of the S.P.E., C.B.I., Madras, to register and investigate an offence, under section 5(1)(e) read with Section 5(2) of the Act, has been raised, since the offence had not been notified under Section 3 of the Delhi Special Police Establishment Act, 1946, and further the consent of the State Government had not been obtained after the introduction of Section 5(1)(e) in the Act, with effect from 18-12-1964.
6. Certain other grounds relating to facts and law have been taken in Crl.R.C. 465 of 1988 and Crl.M.P. No. 6501 of 1988, which may have to be considered separately, after answering the main issue involved in all these Petitions.
7. In Crl.M.P. Nos. 13294, 13297 and 13361 of 1989, Mr. G. Krishnan, learned counsel appearing for the Petitioner, in each one of these cases, specifically represented, that except the common ground of challenge he was not urging any other ground regarding the merits of the case. The facts, leading to the prosecutions, in these Petitions, need not have to be stated, in view of the specific stand taken by the learned counsel for the Petitioner.
8. FACTS IN CRL.R.C. No. 465 of 1988 and Crl.M.P. No. 6501 of 1988 :- The Petitioner joined the Customs Department as a Lower Division Clerk in 1956 and was promoted as a Preventive Officer in 1974. During the period 1980 to 1985., he worked in various places in his capacity as a Preventive Officer, Bond Officer, Custodian of Articles in Customs Warehouse and Preventive Officer at the Customs House and at Air Cargo Complex, Madras. A case was registered on 19-8-1985 against the Petitioner and during the course of investigation, he was found in possession as on 31-8-1985, of assets disproportionate to his known sources of income, to the extent of Rs. 2,28,682.86, for which he was not able to satisfactorily account.
9. Mr. K. Ramaswami, learned counsel appearing for the Petitioner in Crl. 465 of 1988 and Crl.M.P. No. 6501 of 1988 has formulated the following questions for decisions :-
(1) The respondent derives power and jurisdiction to investigate any offence against Central Government Servants, working within the territorial limits of any State, under Sections 2, 3, 5 and 6 of the Delhi Special Police Establishment Act, (Act XXV 1946). Section 2 empowers the Central Government to constitute a Special Force called the Delhi Special Police Establishment for investigation of offences notified under Sec. 3 of the Act. Section 3 of the Act stipulates, specifying, by the Central Government, of the offences or classes of offences, to be investigated by the Special Police Establishment, by means of a notification in the Official Gazette. Section 5 of the Act (Act XXV of 1946) relates to extension of powers and jurisdiction of Special Police Establishment to other areas. Section 6 lays down, that without the consent of the State Government the members of the S.P.E. cannot exercise their powers and jurisdiction in that State, even if their powers and jurisdiction had been extended by the Central Government under Section 5, to any area in that State, in respect of any offence notified under Section 3 of the Act. The last notification in and by which offences under the prevention of Corruption Act, 1947, were notified under Sec. 3 of the Delhi Special Police Establishment Act, is dated 18-12-1963. At that time Section 5(1)(e) was not included as an offence in the Act, but Section 5(3) of the Act was there in the nature of a legal presumption, to be used as an aid, when dealing with offence under Sec. 5(1)(a) to (d). With effect from 18-12-1964 Section 5(3) was deleted and a new offence in Section 5(1)(c) was added to the statute and this new offence was made punishable under Sec. 5(2) of the Act. Subsequent to the amendment, there has been no notification under Section 3 of the Delhi Special Police Establishment Act, notifying Section 5(1)(e) of the Act, as an offence, which can be investigated by the Special Police Establishment. Further the 1947 Act, after its amendment in 1964, was also not notified, in any subsequent notification. Similarly no order was issued by the Central Government under Section 5 of Act XXV of 1946 after the above date, extending the power and jurisdiction of the S.P.E., to investigate the offence under Section 5(1)(e) of the Act in the State of Tamilnadu. The requirement of Section 6 of the Act XXV of 1946, of obtaining the consent of the State Government, to acquire powers to investigate the offence under Section 5(1)(e) of the Act was also never specifically ought or obtained. Therefore, in the absence of notification and any order under Sections 3 and 5 of Act XXV of 1946, no question of obtaining consent from the State of Tamilnadu will arise. The consent letter dated 20-11-1981 given by the State of Tamilnadu cannot cover S. 5(1)(e) of the Act, since the annexure thereto, makes no reference to any fresh notification issued under Section 3 of the Act XXV of 1946, after 18-12-1964;
(2) The Collector of Customs, who had accorded sanction to prosecution, had taken part in the investigation in that he had been asked to collect property statement. Therefore, the sanctioning authority cannot be taken to be one with unbiased views. The exercise of power to grant sanction must be uncontaminated and if taint was evident, the sanction would stand vitiated. On facts, it was clear that the sanctioning authority ceased to have a dispassionate mind;
(3) The investigation was not in accordance with law. Though it may be open to the prosecution to select a check period, if the basis for such reckoning was not fair, it would offend Art. 21 of the Constitution. Further, after the introduction of the Benami Transactions (Prohibition) Act, 1988, (No. 45 of 1988), the accused cannot be asked to account for the property in the name of another and seeking to elicit explanation, will be oppressive. Even at the investigation stage, the Investigating Officer will not be competent to omit explanation offered by the accused and restrict the enquiry to the check period alone. To that extent, the prosecution will not be in accordance with the procedure established by law. Illegality in investigation will affect the jurisdiction of the Court to take cognizance; and
(4) The sanction accorded to prosecute the Petitioner clearly shows, that the allegations in the charge sheet have been repeated and the final paragraph sanctioned prosecution. The mechanical accord of sanction, relegates it to a mere empty formality, without any sanctity attached to it.
10. The first contention is common to all the petitions while contentions 2 to 4 will be restricted to Crl.R.C. No. 465 of 1988 and Crl.M.P. No. 6501 of 1988.
11. Mr. B. Sriramulu, learned counsel appearing for the respondent, in reply to the submissions made by the learned counsel appearing for the Petitioners, contended, that even though Section 5(1)(e) was added subsequently, the previous notification will govern the subsequent addition also, since the entire Act was covered under it. All offences under the Prevention of Corruption Act, 1947, as amended in 1964, must be deemed to have been notified. Section 5(1)(e) of the Act is punishable under Section 5(2) of the Act. The penal section was in existence when the notification in G.S.R. No. 305, dated 18-2-1963 was made, in exercise of the powers conferred under Section 3 of Act XXV of 1946 and the relevant portion refers to offences punishable under the Prevention of Corruption Act, 1947. On a same partity of reasoning, the consent accorded in 1963, should be held to govern Section 5(1)(e) of the Act, vesting jurisdiction with the Special Police Establishment, though Section 5(1)(3) was introduced later. Large classes of public servants were brought under the net with effect from 18-12-1964. The notification refers specifically to offences under the Indian Penal Code, while the prevention of Corruption Act, 1947, has been notified as a whole. A Full Bench of his Court had gone into this question and held in favour of the prosecution.
12. The Collector of Customs had not taken part in the investigation. As a statutory authority, a duty was cast upon him to find out facts. A copy to the first information report is sent to the Collector of Customs, in the usual course. In the prosecution relating to M. S. Kuppuswami, Petitioner in Crl.R.C. No. 465 of 1988 and Crl.M.P. No. 6501 of 1988, the Collector of Customs had not sent any notice and at this stage, there was no material to show, that the Collector of Customs had participated in the investigation. The plea of bias is totally unwarranted. It will be erroneous to except the prosecution, to disprove as well, the existence of possible sources of income of the Public Servant. The wife and daughter of Kuppuswami were examined and statements recorded from several witnesses, during investigation, were taken note of before a final report was filed, that the Petitioner possessed assets, pecuniary resources or property disproportionate to his known sources of income, which he was not able to satisfactorily account. The Benami Transactions (Prohibition) Act, 1988, (No. 45 of 1988) has a purpose behind it, to prohibit benami transactions. The provisions of the said Act cannot erase or nullify the offence allegedly committed by the Petitioner, M. S. Kuppuswami. The sanction accorded is in consonance with law and the accused need not be heard before the grant of sanction. Merely because the statements of facts, have been repeated in the sanction order, it cannot be argued, that there was non-application of mind, for the final paragraph in the order shows that position contra. The investigating agency was not expected to anticipate all possible defences, while discharging its onus, of placing before Court prima facie material, sufficient enough to initiate prosecution.
12A. The learned counsel for the Petitioners as well as the learned counsel for the respondent sought support for their respective pleas by citing authorities which, I will consider at the relevant context.
13. The first question may not require serious scrutiny, since the very same question was considered by a Full Bench of this Court in K. Veeraswami v. Union of India, 1979 Mad LW (Cri) 64 (Short-Notes). The majority judgment was delivered by Mohan, J. as he then was, for himself, and S. Natarajan, J., as he then was, Balasubramaniam, J., dissented with the majority view on certain points, while concurring with Mohan, J., on the same aspects. In answer to question 3, the Full Bench observe as follows :-
"From these authorities, (set out below), it can be inferred that Section 5(1)(e) constitutes a distinct form of the offence of criminal misconduct. It may also be observed in this connection that it cannot be interpreted as a mere rule of evidence, because, unless a person has been charged under other sub-sections 5(1)(a) to (d) the presumption under old S. 5(3) cannot arise while under the present section there can be an independent charge under S. 5(1)(e). Nevertheless, what requires to be carefully observed is that the notification may relate either to offences or classes of offences under Section 3 of the Delhi Special Police Establishment Act. What has been notified in a class of offence punishable under the Prevention of Corruption Act. This is in contrast of the offence made punishable under the Penal Code under Specific Sections. If so, construed as the Petitioner wanted to do, the distinction between an offence and class of offence gets obliterated. Therefore, we hold that the act of deliberation or the exercise of mental power by the State Government, which is involved in a consent, is not necessary in this case."
The Full Bench was considering the notification made by the Central Government when the offence under Sec. 5(1)(e) of the Prevention of Corruption Act, had not yet come into the statute book, as well as the letter of consent of the State Government dated 27-6-1963. The consent given by the Tamilnadu Government after 1964 was also taken note of by the Full Bench.
14. In the additional set of typed papers filed by the learned counsel for the Petitioner in Crl.R.C. No. 465 of 1988 and Crl.M.P. No. 6501 of 1988 in page 1, Notifications of the Central Government under Section 3 of the Delhi Special Police Establishment Act, 1946, have been listed chronologically, Notification No. 7/5/55-AVD, dt. 6-11-1956, under Clause (b) has included offences punishable under the prevention of Corruption Act, 1947. Notification No. 25/12/1962-AVD I dated 18-2-1963 under clause (b) has included offences punishable under the Prevention of Corruption Act, 1947. Subsequently notifications, dt. between 1-4-1964 and 11-8-1980 do not concern themselves with the provisions of the Prevention of Corruption Act, 1947. In page 6 of the set of Papers, a letter dt. 20-11-1981 addressed by the Commissioner and Secretary to Government of Tamilnadu to the Secretary to the Government of India, D.P. & AR. Cabinet Secretariat, New Delhi, shows that in supersession of the consent given on 18-5-1976 and other letters issued from time to time on the subject, the Tamilnadu Government had given their consent under Section 6 of the Delhi Special Police Establishment Act, 1946, in respect of (i) cases involving either Central Government Servants or Officers belonging to Public Sector Undertakings under the Central Government; and (ii) cases involving financial or other interests of the Central Government or Public Sector Undertakings under the Central Government, in relation to offence mentioned in the list of offences enclosed with the D.O. letter second cited. The D.O. letter second cited dt. 5-6-1972 was addressed by the Minister, Department of Personnel, Cabinet Secretariat, Government of India to the Chief Minister of Tamil Nadu. The list of offences notified has been typed in the subsequent pages (pages 8 to 14). Under the heading "Offences which the Delhi Special Police Establishment is competent to investigate in all States including Jammu and Kashmir and Union Territories", in clause (ii), the offences punishable under the Prevention of Corruption Act, 1947 (II of 1947) has been included. The argument is that after S. 5(1)(e) came into the statute book, this distinct offence, has not been specifically included by virtue of a notification and consent of the State Government was not specifically contained for this added offence. The list of notifications range between 1963 and 1970. Mr. K. Ramaswami, learned counsel appearing in two of these petitions, with some hesitation submitted, that in respect of classes of offences, falling within the fold of Section 3 of the Delhi Special Police Establishment Act, 1946, the Full Bench decision of this court may require re-consideration. He pointed out the observations of Balasubramaniam, J., in the dissenting judgment to gain support for his plea. The observations runs as hereunder :-
"The next point raised by Mr. Venugopal for the petitioner is that when the Central Government made the notification in 1956, the offence under Section 5(1)(e) of the Prevention of Corruption Act, 1947, had not yet come into the statute book, it having been introduced by way of amendment only on 18th December, 1904. The question, however, may be decided simply, as a matter of construction of the letter of the Tamil Nadu Government, dt. 27th June, 1963. This letter of consent, no doubt, was issued after S. 5(1)(e) of the Prevention of Corruption Act came into force. The language of the letter giving consent is however peculiar ....
Hence even though the Tamil Nadu Government gave its consent after 1964, the terms of their consent were the same as their pre 1964 consent. This being so it would be proper to hold that the officers of the special police Establishment can have no jurisdiction to investigate and prosecute offence under S. 5(1)(e) of the Prevention of Corruption Act in Courts in Tamil Nadu."
I am unable to accept this submission, for I am bound by the law laid down by the Full Bench. Further, a reference to the judgment of the Supreme Court in State of M.P. v. M. V. Narasimhan, , may be relevant. The Apex court while considering insertion of the twelfth clause in Section 21 of the Indian Penal Code by virtue of Criminal Law Amendment Act, 1958, and the substitution of clause 12 to Section 21 of the Indian Penal Code, by virtue of the Anti-Corruption Laws (Amendment) Act, 1964 (Act No. XL of 1964) vis-a-vis Section 2 of the Prevention of Corruption Act, 1947 observed as follows :-
"Having regard to the preamble and the object of the 1947 Act and the Penal Code, there can be no doubt that the Act was a statute supplemental to the Penal Code. Therefore, the definition of 'public Servant' borrowed from Section 21 of the Penal Code must be read into Section 2 of the Act not only at the time when it was borrowed (i.e. 1947) but even at the material date when the offence is committed. This being the position, it is manifest that, by virtue of the amendments, of 1958 and 1964 which inserted twelfth clause to S. No. 21 of the Penal Code, an employee of the Heavy Electricals (India) Ltd., Bhopal, Committing an offence under the 1947 Act after 1964, clearly comes within the meaning of "Public servant" further, the Prevention of Corruption Act, being a 'social legislation, its provisions must be liberally construed so as to advance the object of the Act. This can only be done if an extended meaning is given to the term "public servant" as referred to in Section 2 of the Act by applying the enlarged definition contained in clause 12 inserted in the penal code by the two amendments referred to above."
15. As rightly contended by Mr. B. Sriramulu learned counsel appearing for the respondent, an amendment to the Indian Penal Code can only be made by the Parliament while a notification would be sufficient in respect of investing powers under the Delhi Special Police Establishment Act. The notification under section 6 of the Act, includes all offences under the Prevention of Corruption Act and naturally Section 5(1)(e) introduced by Act 40 of 1964, being an offence under the Prevention of Corruption Act punishable under Section 5(2) of the Act, gets within the fold of the notification, investing powers to the Delhi Special Police Establishment, to investigate offences under the Prevention of Corruption Act. The notifications which forms part of pages 8 to 14 of the typed set of papers shows that the Government was aware of offences and classes of offences, while notifications were issued. I hold that the notification related to offences punishable under the Prevention of Corruption Act, Section 5(2) being the penal Section and though Section 5(1)(e) was added subsequently, the previous notification will govern the subsequently added section also, since the previous notification, covers the entire Act. The question of consent of the Tamil Nadu State Government need not detain us, since the Full Bench of this Court has settled the law, on this issue. I am unable to agree that merely because Sec. 5(1)(e) of the Act has been held to be a distinct offence, it must be separately notified and the Prevention of Corruption Act also must have been notified after the introduction of Section 5(1)(e) in the Act. The decision in State of Maharashtra v. K. K. S. Ramaswamy, and K. V. Gnanasambandam v. State of Tamil Nadu, 1984 Cri LJ 1903 (Mad) which hold that Section 5(1)(c) of the Act was a distinct offence does not alter the situation. The Full Bench of this Court in K. Veeraswami's case 1979 Mad LW (Cri) 64 (SN) both the majority and the dissenting Judges, took the view that the offence under Section 5(1)(e) was distinct. The first contention is, therefore, rejected.
16. On the second ground, the learned counsel for the petitioner, would strenously contend, that the Collector of customs, the sanctioning authority, had taken part in the investigation, since the petitioner was asked to file his property statement. A reference was made to the memo issued to the petitioner, dt. 2-12-1985, by the Deputy Collector of Customs which read as follows :-
"Shri M. S. Kuppuswami, P.O.T. is hereby required to fill in the enclosed forms I to VI for furnishing the details of his assets held during the period 1-1-1980 to 31-8-1985, under Rule 18(4) of the Central Civil Services (Conduct) Rules 64 and return the same to the undersigned within a fortnight from the date of receipt of this memo."
It was submitted, that the check period chosen by the investigating agency, has been stated in the memo and the Forms I to VI which were forwarded for furnishing details, appeared to have been printed, for the C.B.I., probabilising those forms having been forwarded by the investigating agency to the Collector of Customs, to facilitate the latter obtaining information from the petitioner to be used for the purpose of investigation. The reply of the petitioner to the Deputy Collector of Customs and further memos issued by the Asstt. Collector of Customs were also sought to be relied upon to impress upon the Court, that the Deputy Collector of Customs and the Assistant Collector of Customs must have acted under the directions of the Collector of Customs and the words used in one of the memos "legal acquisition of these assets" would indisputabley indicate the hand of the police behind the issue of these memos. It was also mentioned in passing, that in the last Page of Forms I to VI, the words" A.C. 36 of 1985" had been written. In specific reply to this argument, the learned counsel for the respondent, contended that a copy of the first information report, in the usual course, was forwarded to the Collector of Customs. Further the Collector of Customs was the statutory authority to hold departmental proceedings and a duty was cast upon him to find out facts. The Collector had to fulfill a statutory obligation under the Central Civil Service (Conduct) Rules and the performance of his duty cannot be equated, to a role taken during investigation of the crime. The Collector of Customs had not sent any notice to the petitioner and even the memo calling upon the petitioner to furnish details of the assets was issued by the Deputy Collector of Customs. In support of his contention of what bias could be, the learned counsel for the petitioner relied upon the decision of the Gujarat High Court in Mumkum Prakasham v. State , P. R. Gogulakrishnan J., speaking on behalf of the Division Bench observed that there was no need for actual proof of prejudice, but it was enough that there was a reasonable suspicion in the minds of those who were aggrived by the presence of a particular individual in the committee. Stress was laid upon 'reasonable suspicion". Since every suspicion cannot be considered 'reasonable'. The court had to see if there was any reasonable suspicion by the party concerned which would spell out 'bias' on the part of some members of the Committee in the Selection. The Court was concerned with bias in Government contract in respect of supply of books. In the Committee for selection of books, the daughter of one of the authors was a member. The other member was the Registrar of Sahitya Academy. Books written by Vice Chairman of the Academy were also put up for selection. While quashing the selection of books by the Committee awarding contracts to the said two authors for supply of books, the earlier observations were made by the Gujarat High Court. The question of bias is a matter of evidence. The correspondence between the petitioner and certain officials of the Collector of Customs, have not been brought in evidence and this Court, in the exercise of its inherent powers, cannot look into these documents, whose genuineness is yet to be established. The court will not be called upon at this stage to look into the documents, which the defence proposes to rely upon either for exoneration or imputing bias to the sanctioning authority. At this stage, learned counsel for the petitioner urged, that since a revision against the order of discharge was also being decided by this court, the correspondence sought to be relied upon by the petitioner can be looked into. In support of his argument, he cited the decision of the Karnataka High Court in Thirtharaj Upendra Joshi v. State of Karnataka, 1983 Cri LJ 318. While considering Sections 239 and 240 of Crl.P.C. it was held, that the accused while addressing arguments before the Magistrate, had filed a list of documents in support of his arguments, that he was a partner of the firm in which the complainant was also one of the partners. The Magistrate had not even referred to the documents before directing framing of a charge under Section 379, I.P.C. Not adverting to the documents filed by the accused, before ordering framing of a charge amounted to not giving sufficient opportunity contemplated under Section 239, Cr.P.C. This view of the Karnataka High Court, had been taken note of by Ratnavel Pandian O.C. J. he then was, in Angusami v. Kalesswaran Ambalam, 1989 Mad LW (Cri)
108. The learned Judge held as follows :-
"This stage of Section 239 of the Code prior to the framing of the charge under Section 240 of the Code, is not expected to be a dress rehearsal of a trial. The Magistrate, at that stage is required to consider the police report and the documents sent along with it under Section 173 which are furnished to the accused in compliance with Section 207 of the Code and the explanation given by the accused during his examination and the submission, if any, made by the prosecution and the accused for finding out whether the charge, which means the accusation, levelled against the accused is groundless. At that stage, as rightly pointed out by the learned single Judge of the Delhi High Court in Surinderkumar Yadev's case (1986) 3 Crimes 645, it is not open to the Magistrate to consider any other document, which is not covered by the provisions of Section 207 of the Code, and the examination of the accused, if any, under that provision must necessarily be with regard to the material placed by the prosecution against him and the documents referred to under Section 207, Cr.P.C., but the documents produced by the accused are not to be taken into consideration by the Magistrate while applying his mind whether the accusation levelled against the accused is groundless or not."
I am in respectful agreement with the view expressed by Ratnavel Pandian, O.C. J. The learned Judge while arriving at such a conclusion referred to the judgment of the Supreme Court in J. P. Sharma v. Vinod Kumar Jain, .
"In that case the Deputy Chief Controller of the Imports and Exports filed a complaint under Section 120B of the Indian Penal Code and S. 5 of the Imports and Exports (Control) Act against the accused persons there is no certain allegation. The Magistrate accepted the complaint and issued summons to the accused persons. Meanwhile there was a supplementary investigation made by the Central Bureau of Investigation (CBI). The accused preferred petitions under S. 482, Crl.P.C. for quashing the complaint on the ground that the materials collected by the CBI are relevant and if they were taken into consideration, there was no basis for the complaint. The Statement of the accused was opposed by the Government on the ground that the materials collected during the Investigation were not relevant and necessary for the complaint launched by the Deputy Chief Controller of Imports and Exports. The Delhi High Court, however, quashed the complaint. As against that order, a Criminal appeal was preferred before the Supreme Court. The Supreme Court while examining the legality of the order of the High Court has stated :
"The question at this stage is not whether there was any truth in the allegation but the question is whether on the basis of the allegations, a cognizable offence or offences had been alleged to have been committed. The facts subsequently found out to prove the truth or otherwise of the allegation is not a ground on the basis of which the complaint can be quashed."
Therefore, it is apparent that on the principles laid down in J. P. Sharma v. Vinod Kumar Jain, at the stage of Section 209, Cr.P.C., there is no question of adding or substracting anything or considering any extraneous matter other than the documents forwarded to the Court as contemplated under Section 173, Cr.P.C., and furnished to the accused under Section 207, Cr.P.C., besides examining the accused and affording an opportunity, both to the prosecution and the accused of being heard. Therefore either in the exercise of inherent powers or the revisional powers at this stage, the documents sought to be brought on record by the defence cannot be looked into. If the petitioner is able to satisfy the trial court on the evidence adduced, that there was a bias, in according of sanction, he will be at liberty to urge this contention before the trial Judge. The second contention necessarily fails.
17. While arguing on the legality of investigation Mr. K. Ramaswami strenuously contended that Section 3(1)(3) of the Act did not impose a check period. The wording of section did not give an arbitrary right to the investigating officer to choose a check period. The fact of possession can relate to a date, but the known source of income must date back to the assumption of office by the public servant. This question was also considered by the Full Bench of this court in K. Veeraswamy v. Union of India, 1979 Mad LW (Cri) 64 (Short Notes). It is better to extract the observations therein :
"Mr. K. K. Venugopal draws our attention to the charge-sheet and then contends that what is averred thereunder is the period between 1-5-1969 when the petitioner became Chief Justice and 24-2-1976 when he demitted office. He is alleged to have been in possession of pecuniary resources disproportionate to his known sources of income over the same period and he cannot satisfactorily account for such disproportionate pecuniary sources or property. Therefore, according to him, a new offence is sought to be made out. It can be done so provided the S. 5(1)(e) permits, but not otherwise. 'At any time during the period of office' means at any stated time. But, the commencement must be from the date on which he became a public servant, and not by choosing an arbitrary date or period. By this process he is called upon to explain each and every acquisition which certainly is not the offence contemplated under this section.
The learned Advocate-General would state that the period is not an arbitrary period. It was on 1-5-1969 the petitioner became the Chief Justice and thereafter till he demitted such office he is called upon to explain the assets. 'At any time during the period of office' under S. 5(1)(b) of the Prevention of Corruption Act does not mean, right from the inception. Whatever sources are 'known to the prosecution' have been taken into account. If earlier sources have been left out, the prosecution has taken a risk. It is well open to the other side to prove that no disproportion exists as alleged by including those assets ....
In our view, these are details which are to be gone into during the time of trial and a detailed enquiry cannot be embarked upon at this stage. Suffice it to hold by selecting the period 1-5-1969 to 24-2-1976 no new offence is sought to be created, because a balance was struck on 1-5-1969 making that date as the period of commencement. If on the contrary, the sources known to the prosecution have been left out, the prosecution has taken a risk and it is not for us to say anything about the same, because we feel that it is a matter of evidence."
This is a complete answer to the choice of check-period.
18. In State of Maharashtra v. Pollonji Darabshaw,
the Supreme Court, while considering criminal misconduct under Section 5(1)(e) of the Act stated as follows (Paras 10 and 11) :-
"In order to establish that a public servant is in possession of pecuniary resources and property, disproportionate to his known sources of income, it is not imperative that the period of reckoning be spread out for the entire stretch of anterior service of the public servant. There can be no general rule or criterion, valid for all cases, in regard to the choice of the period for which accounts are taken to establish criminal misconduct under S. 5(1)(e). The choice of the period must necessarily be determined by the allegations of fact on which the prosecution is founded and rests. However, the period must be such as to enable a true and comprehensive picture of the known sources of income and the pecuniary resources and property in possession of the public servant either by himself or through any other person on his behalf, which are alleged to be so disproportionate .... The assets spilling over from the anterior period, if their existence is probabilised, would, of course, have to be given credit to on the income side and would go to reduce the extent and the quantum of the disproportion. It is for the prosecution to choose what according to it is the period which having regard to the acquisitive activities of the public servant in amassing wealth and characterise and isolate that period for special scrutiny ........
'Once the prosecution establishes the essential ingredients of the offence of criminal misconduct by proving, by the standard of criminal evidence, that the public servant is or was at any time during the period of his offence, in possession of pecuniary resources or property disproportionate to his sources of income known to the prosecution, the prosecution discharges its burden of proof and the burden of proof is lifted from the shoulders of the prosecution and descends upon the shoulders of the defence. It then becomes necessary for the public servant to satisfactorily account for the possession of such properties and pecuniary resources. It is erroneous to predicate that the prosecution should also disprove the existence of the possible sources of income of the public servant."
19. In the State of Maharashtra v. Wasudeo Ramachandra, , which was taken note of in the State of Maharashtra v. Pollonji Darabshaw, (supra), all that the
prosecution must prove to substantiate the charge to bring a case under S. 5(1)(e) of the Act was summarised as follows :-
"(1) It must establish that the accused is a public servant, (2) the nature and extent of the pecuniary resources or property which were found in his possession, (3) it must be proved as to what were his known source of income i.e., known to the prosecution, and (4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income."
It was further observed, that once these four ingredients were established, the offence of criminal misconduct under Section 5(1)(e) was complete, unless the accused was able to account for such resources or property. The burden then shifted to the accused to satisfactorily account for his possession of disproportionate assets. Even in this case the Supreme Court took the view that the prosecution need not disprove all possible sources of the income of the accused. The expression 'known source of income' meant sources known to the prosecution. It is, therefore, premature for the petitioner to contend, that the check period has been arbitrarily chosen. As rightly pointed out by the Full Bench of this Court in K. Veeraswami's case, 1979 Mad LW (Cri) 64 (SN), if the prosecution, had left out sources known to the prosecution, it takes a risk and it was well upon to other side to prove that no disproportion existed. The argument that an impossible burden is cast on the accused which, the law does not allow, has to be outright rejected. I have carefully perused the report forwarded by the investigating officer to the Court along with the records and I am satisfied that the material found therein, would be sufficient to put the petitioner on trial. The argument of the learned counsel for the petitioner, that the petitioner could not have had any acquisitive activity between May, 1981 and July, 1984. In view of his having worked as a case File Officer in the Adjudication Unit, Bond Officer, Southern Sulphate and Chemicals (Private) Limited, Custodian of Valuables Ware House, Customs House, Madras, cannot be countenanced, for it relates to the realm of evidence. It will depend, on how a person interested in acquisition, will not, irrespective of the office he holds, at a particular point of time.
20. While commenting on the duties and responsibilities of the investigating agency to present a fair picture before the Court since in law, as observed by David Ankussamy, J. in D. Vedagiri, In Re, (1985 Mad LW (Cri) 243), the investigating officer owed a duty to give an opportunity to the accused to explain the disproportion found during investigation, which logically must take in its fold consideration of the explanation by the accused, and further investigation naturally had to be done by the officer, which must extend beyond the check period. The grievance of the petitioner is that the source of income out of the joint family property prior to 1-1-1980 had not been taken note of by the investigating officer and to that extent the prosecution suffered, in not having adhered to the procedure established by law. At this stage, it will not be possible to go into the merits of this argument, since it is apparent that during investigation the petitioner was called upon to explain the disproportion found by the investigating officer and thereafter the wife, daughter and the brothers of the petitioner, have been examined. The officials of the school where the daughter of the petitioner had studied as well as the college in which she pursued her further education have been examined. It was brought to my notice, by the learned counsel appearing for the respondent, that the accused when questioned by the investigating officer, had stated that his wife, and daughter were wholly dependent on him and his wife was not employed. Of course, the petitioner will have a right to challenge the statement during trial, but prima facie this statement cannot be excluded at present. The weight to be attached to the evidence of these witnesses will again relate to the stage of trial. A plea was made that the letter of Prema, wife of the petitioner, sent to the investigation officer should have been taken note of. At the risk of repetition, these matters which pertain to trial and open for cross-examination, of the investigating officer, cannot be gone into in these petitions. Once it has been held by the highest Court of the Land that the prosecution would be entitled to select a period for ascertainment of disproportionate assets, the argument of artificial dissection, the scope for the possible decrease in the unexplained assets will all have no bearing, while exercising inherent or revisional powers at a pre-trial stage.
21. Mr. K. Ramaswami, learned counsel for the petitioner, would emphatically contend that there must be some inbuilt procedure by which the investigating officer must be compelled to acknowledge documents produced by the accused during investigation, so that the plea of the accused at the earliest point of time, would be on record. Quite often we come across the accused claiming to have entrusted documents with the investigating agency, while the latter deny such receipts. The problem relates to assert by one party and denial by other party, which again may have to be tested during the course of trial. It will always be better that acknowledgments are given by the investigating agency if, in fact, documents are handed over by the accused, for fairness in procedure will thereby be reflected. We cannot also ignore false claims made in certain cases, that documents had been handed over to the investigating officer while, in fact, it was not so done. Civic conscience must develop, to put an end to this grievance. The argument based on the provisions of Benami Transactions (Prohibition) Act, 1988 has to be stated only to be rejected. The Act has a purpose behind it, to prohibit benami transactions and to prohibit any claim, suit or action by or on behalf of a person claiming to be real owner of such property. Section 3 of the Act, which prohibits any person from entering into a benami transaction, provides that it shall not apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed unless the contrary was proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter. The Benami Transactions (Prohibition) Act, 1988, will not erase the offence under Section 5(1)(e) of the Act, if it is remembered that the burden of showing that a particular transaction is benami and the owner was not the real owner always vested on the person asserting it to be so and this burden has to be strictly discharged by adducing legal evidence of a definite character, which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. As observed by the Supreme Court in Krishnanand v. State of M.P., , the essence of benami is the intention of the parties and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of the serious onus that rests on him, nor justify the acceptance of mere conjectures or surmises as a substitute for proof. The Benami Transactions (Prohibition) Act is intended to prevent fraud and not to perpetuate it. A man cannot take advantage of his own wrong and plead for exclusion by attempting to frustrate the objects behind Section 5(1)(e) of the Act. The Benami Transactions (Prohibition) Act, and the Prevention of Corruption Act operate in different fields. I am unable to accept the contention that under Section 5(1)(e) of the Act the petitioner cannot be asked to explain the source for the fixed deposits found in the name of his wife and unmarried daughter. The petitioner certainly has no opportunity during trial to disprove the allegations made by the prosecution. This contention is not acceded to.
22. The sanction to prosecute does contain repetition of the acts, found in the charge-sheet. Merely because the narration of facts has been barrowed from the charge-sheet, it cannot automatically be concluded that there was non-application of mind before the sanction was accorded. It would certainly be better if, after going through the facts, the sanctioning authority himself, on his understanding of the case, gives a resume of facts in the order of sanction, without adopting to follow the very phraseology used by the investigating agency. A mere reproduction of words, as far as the facts of the case are concerned, cannot in all cases indicate lack of open mind. Sanction is not an empty formality but intended to be a protection to a public servant when prosecuted for an offence which challenges his honesty and integrity. The issue in such a case is not only between the prosecution and the offender, but the State as well, since it vitally concerned, for it tends to affect the morale of the public services and also the administrative interest of the State. The purpose of sanction being vested in a departmental authority is to provide an opportunity for assessment and weighing of the accusation in a dispassionate and responsible manner. Such an approach in the matter of according sanction must be apparent on the face of the record. It will be appropriate, that the order of sanction reflects the understanding of the facts by the sanctioning authority in his own way, not being put into a strait-jacket of repeating the facts put forth by the investigating agency. Sanction to prosecute must have sanctity attached to it, for the liberty of the person prosecuted is involved. However, on a perusal of the order of sanction, it is prima facie apparent, that the sanctioning authority had carefully examined the investigation report, copy of the F.I.R. search list, inventory reports, other documents covering the allegations, statement of witnesses, explanations offered by the petitioner placed before him with regard to the allegations and the circumstances of the case before allowing the prosecution to be instituted. During trial it will be still open for the petitioner to challenge the sanction order, but at this juncture it will not be possible to conclude on the mere repetition of facts, that there was non-application of mind and as a habitual exercise, sanction had been accorded.
23. The Supreme Court in Jaswant Singh v. State of Punjab, stated that "the sanction under the Prevention of
Corruption Act was not intended to be nor was an automatic formality and it was essential that the provisions in regard to sanction should be observed with complete strictness. The object of the provision for sanctions is that the authority giving the sanction should be able to consider for itself the evidence before it comes to a conclusion that the prosecution in the circumstances be sanctioned or forbidden. It should be clear from the form of the sanction that the sanctioning authority considered the evidence before it and after a consideration of all the circumstances of the case sanctioned the prosecution, and therefore, unless the matter can be proved by other evidence, in the sanction itself the facts should be referred to indicate that the sanctioning authority had applied its mind to the facts and circumstances of the case. It was not for him to look into extraneous records to form an opinion to accord or reject sanction. This ground also does not enure in favour of the petitioner.
24. However, a plea was made by Mr. K. Ramaswamy, learned counsel appearing for the petitioner, that a direction may be issued to the trial court to examine the witness expected to prove sanction as the first witness for the prosecution. To this course, the prosecution has no objection. The prosecution in the normal course must be allowed to use its discretion, in choosing the serial order in which its witnesses have to be examined. There can be no impediment in examining the witness expected to prove the sanction order initially, since such a course is agreeable to the prosecution as well. If the sanction were to be challenged on the question of bias alone which certainly is a question of fact, and not on any legal invalidity, a word of caution is necessary that the trial should not be halted in its track. I do not find any infirmity in the order of the trial court in having rejected the plea of discharge made by the petitioner and having ventured to frame an appropriate charge. Cr.R.C. 465 of 1988 and Cr.M.P. 6501 of 1988 are dismissed with the above observations. Cr.M.P. 13294, 13297 and 13361 of 1989 are dismissed, since the power and jurisdiction of the S.P.E. to investigate offences under Section 5(1)(e) of the Act has been upheld.
25. Petition dismissed.
No comments:
Post a Comment