Further the issue relating to validity of the
sanction for prosecution could have been considered only
during trial since essentially the conclusion reached by
the High Court is with regard to the defective sanction
since according to the High Court, the procedure of
providing opportunity for explanation was not followed
which will result in the sanction being defective. In that
regard, the decision in the case of Dinesh Kumar vs.
Chairman, Airport Authority of India, (2012) 1 SCC
532 relied upon by the learned Additional Solicitor
General would be relevant since it is held therein that
there is a distinction between the absence of sanction
and the alleged invalidity on account of nonapplication
of mind. The absence of sanction no doubt can be
agitated at the threshold but the invalidity of the sanction
is to be raised during the trial. In the instant facts,
admittedly there is a sanction though the accused seek to
pick holes in the manner the sanction has been granted
and to claim that the same is defective which is a matter
to be considered in the trial.
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 14891490
OF 2019
Central Bureau of Investigation (CBI) Vs Mrs. Pramila Virendra Kumar
Dated:September 25, 2019
A.S. Bopanna,J.
Delay condoned.
2. Leave granted.
3. The appellant Central Bureau of Investigation (CBI)
is before this Court assailing the order dated 14.12.2015
passed by the High Court of Judicature at Bombay in
Criminal Revision Application Nos. 284/2013 and
323/2013. Through the said order the High Court has
allowed the Criminal Revision Application No. 284/2013
and discharged the accused No. 2 and further the
Criminal Revision Application No. 323/2013 filed by the
appellant herein was dismissed.
4. The brief facts limited to the disposal of these
appeals is that the first respondent in both these appeals,
namely, Smt. Pramila Virendra Kumar Agarwal and Shri
Virendra Kumar Agarwal were charged under Section
13(1)(e) read with Section 13(2) of the Prevention of
Corruption Act, 1988 (‘P.C. Act’ for short) and Section
109 of IPC. The respondent No. 1 in SLP (Crl.) D.No.
23350/2017 is the wife of the respondent No.2. They are
charged as accused No. 2 and accused No. 1 respectively
and are proceeded against in CBI, ACB Special Case No.
21/2010. In the said proceedings both the accused filed
separate applications seeking their discharge. The
application of accused No. 1 Shri Virendra Kumar
Agarwal was registered as Exhibit 13 while that of
accused No. 2 Smt. Pramila Virendra Kumar Agarwal was
registered as Exhibit 20. The Special Court on
consideration of the application for discharge has allowed
the application of accused No. 1 – Shri Virendra Kumar
Agarwal through the order dated 15.01.2013 and
discharged him from the offences charged against him
under FIR No. RC 49(A)/2007:CRI:ACE:Mumbai. Insofar
as the application filed by accused No. 2 Smt.
Pramila
Virendra Kumar Agarwal the Special Court through the
order dated 22.02.2013 had rejected the application.
5. In that background the appellant herein – CBI
claiming to be aggrieved by the discharge of accused No.
1 had filed the Criminal Revision Application No.
284/2013 before the High Court. The accused No. 2,
Smt. Pramila Virendra Kumar Agarwal claiming to be
aggrieved by the rejection of her application for discharge
had filed the Criminal Revision Application No. 323/2013
before the High Court. Since both the Criminal Revision
Applications were arising out of the same proceedings
before the Special Court, in Special Case No. 21/2010,
the High Court had clubbed and considered the same
and disposed of through the common order dated
14.12.2015 by which the Revision Application of the
accused No. 2 was allowed while the Revision Application
of the appellant herein assailing the discharge of
accused No. 1 was dismissed. It is in that light the
appellant herein – CBI has instituted these appeals
assailing the said common order dated 14.12.2015.
6. Heard Shri K.M. Natraj, learned Additional Solicitor
General, for the appellant and Ms. Sonia Mathur, learned
Senior Advocate, for the private respondents as also Shri
Nishant Katneshwarkar, learned standing counsel for the
State of Maharashtra and perused the appeal papers.
7. The learned Additional Solicitor General at the
outset would point out that the High Court though had
taken up both the Revision Applications and disposed of
the same through the common order and in the operative
portion has allowed the application of accused No. 2 and
dismissed the Revision Application of the appellant
herein, the order impugned does not indicate any reasons
for consideration and disposal of the Revision Application
whereby the appellants had challenged the discharge
order of accused No. 1. It is further contended that the
reasons as assigned by the Special Court as also the High
Court for discharge of the accused on the ground that
they were not provided opportunity to explain and the
explanation offered is not a part of the charge sheet is not
justified. It is contended that in the criminal
investigation such procedure is not contemplated and as
such both the Courts have committed an error. It is also
contended by the learned Additional Solicitor General
that the Special Court as well as the High Court has
erred in concluding that the sanction for prosecution is
not done in accordance with law since that aspect can
only be considered during trial and not in the manner as
has been done presently since the contention was of
defective sanction and not that the proceedings was
without sanction. It is his case that the proceedings were
initiated against the private respondents herein based on
information received and when the investigation revealed
disproportionate assets the charge sheet was filed in that
regard. The correctness of the charge is to be established
with evidence during trial and in that circumstance the
discharge granted based on certain assumptions is not
justified.
8. The learned senior counsel for the private
respondents on the other hand sought to contend that
the initial order of discharge of accused No. 1 by the
Special Court and the subsequent order of discharge of
accused No. 2 by the High Court is on proper
consideration and the same do not call for interference.
It is contended that though the prosecution has sought to
charge the private respondents herein alleging that they
had during the check period i.e. 01.01.1994 to
21.10.2007 accumulated assets to the tune of Rs.
1,06,89,194/disproportionate
to the known source of
income, the agency has wrongly clubbed the assets of
both the private respondents merely because they are
husband and wife. It is contended that both of them are
employed and have their separate earning and as such
the clubbing of the assets would not be justified. It is
contended, in that circumstance if the individual assets
of the accused No. 1 and 2 are taken into consideration
the charge of accumulation of disproportionate assets
would not be justified. In that light it is contended that
the Special Court as also the High Court having
appreciated these aspects has found the charge to be not
justified. The learned senior counsel has further sought
to refer to the details of the income during the check
period as also the assets of each of the accused to
contend that the charge is not justified and in that
circumstance if the provisions in Section 13(1)(e) of the
P.C. Act is kept in view the charge was without basis. It
is also the contention of the learned senior counsel that
the sanction order is without application of mind and is
non est since such sanction order has also been granted
in the background of clubbing the income of two public
servants who had independent source of income and
were assessed to tax independently. Hence the learned
senior counsel sought to sustain the order passed by the
High Court which is impugned herein.
9. In the background of contention as urged, a
perusal of the order would indicate that the High Court
has not separately considered the correctness or
otherwise of the order passed by the Special Court, one
while rejecting the discharge application of the accused
No. 2 and the other while allowing the discharge
application of accused No. 1. However, a perfunctory
consideration has been made by raising the question for
consideration as to whether the Investigating Officer was
under obligation to record explanation offered by the
accused and whether such explanation should be part of
the charge sheet and in that light a question is also
raised as to whether the sanctions for prosecution were
defective.
10. While addressing the same the High Court has
referred to the decisions of this Court wherein it is held
that the investigation must be fair and reasonable and
that the Enquiry Officer must not act under any
preconceived idea of guilt of the accused person. The
judgment of the Bombay High Court in the case of N.P
Lotlikar vs. C.B.I was referred to indicate that it was
held therein that mere possession of assets is not an
offence but failure to explain or account for the same
would amount to an offence. The said decision was also
relied upon since it was held therein that before
registration of offence an opportunity ought to have been
given to the accused to explain the source of funds for
acquiring and possessing the assets. Having taken note
of the same the learned Judge of the High Court has also
taken note of the submission of the learned Special
Prosecutor who had pointed out that during the
investigation the accused were called and their
statements were recorded. However, not being satisfied
with the submission to that effect, the learned Judge was
of the opinion that the Investigating Officer ought to have
given specific opportunity to the accused for submitting
an explanation. Thus, having considered the same to be
a lapse it was held that if sanctions for prosecutions were
sought in that circumstance, the Sanctioning Authority
would not have an opportunity to see the explanation
and, therefore, sanction also would be defective.
11. Firstly, it is to be taken note that as contended by
the prosecution, in the course of the investigation the
accused have been summoned and their statements have
been recorded which by itself is for the purpose that they
were required to provide an explanation with regard to
the assets which were according to the prosecution
disproportionate to the known source of income. The
said procedure to be followed in the course of
investigation does not contemplate the consideration of
the explanation in the nature of a mini trial, if not
satisfactory, even before the charge sheet is filed based
on the material collected and the statement recorded in
the course of investigation. The details indicated in the
charge sheet after making reference to the income and
expenditure is as hereunder:
A) The value of the assets of the
beginning of the check period as per
Statement “A”
1,30,000/B)
The value of the assets at the end of
the check period as per Statement
“B”
1,34,45,426/C)
The total assets found during the
check period (BA)
1,33,15.426/D)
The total income found during the
check period as per Statement “C”
51,02,106/Page
E) The total expenditure during check
period as per Statement “D”
24,75,874/F)
Likely saving during check period (DE)
26,26,232/G)
The Disproportionate assets (CF)
Viz
209.50%
1,06,89,194/12.
Even if it is accepted that the above statement is
on clubbing the income and assets of the husband and
wife who have individual source of income, the very
details furnished by the CBI before the High Court by
splitting it in the individual capacity will also prima facie
indicate the nature of the income and the
disproportionate assets allegedly possessed by them at
Rs.47,93,946/and
Rs.56,75,812/respectively.
The
High Court in fact has not adverted on that aspect to
arrive at a conclusion that in that circumstance even if
the case as put forth by the investigating agency is taken
as correct the same would not constitute an offence and,
therefore, they are to be discharged, which in fact is the
nature of consideration required. Further the Special
Court also has merely stated that it has perused the
documents and a reference in that regard is made to the
document at Serial No. 3, namely, the Agreement of Sale
of Flat No. A 305, Shiv Geeta Cooperative
Housing
Society Ltd., Vasai. In any event the conclusion reached
therein had been assailed before the High Court but the
High Court has not adverted to those aspects of the
matter.
13. Further the issue relating to validity of the
sanction for prosecution could have been considered only
during trial since essentially the conclusion reached by
the High Court is with regard to the defective sanction
since according to the High Court, the procedure of
providing opportunity for explanation was not followed
which will result in the sanction being defective. In that
regard, the decision in the case of Dinesh Kumar vs.
Chairman, Airport Authority of India, (2012) 1 SCC
532 relied upon by the learned Additional Solicitor
General would be relevant since it is held therein that
there is a distinction between the absence of sanction
and the alleged invalidity on account of nonapplication
of mind. The absence of sanction no doubt can be
agitated at the threshold but the invalidity of the sanction
is to be raised during the trial. In the instant facts,
admittedly there is a sanction though the accused seek to
pick holes in the manner the sanction has been granted
and to claim that the same is defective which is a matter
to be considered in the trial.
14. In the above background, the impugned order
would indicate that the High Court has not adverted to
the charge made against the accused wherein the charge
against the accused No. 2 is also of abetting the
commission of offence by the accused No.1 and in that
regard the conclusion reached by the High Court is not
that the charge is not sustainable for the reasons
recorded by it. In fact, neither there is any reasons
recorded nor application of mind to that aspect. Insofar
as the question raised and considered by the High Court,
no credence whatsoever has been given to the case of the
prosecution that the statement of the accused has been
recorded which also forms the basis of the charge sheet
and the explanation thus accorded by the accused does
not provide satisfactory answer for the charge of
disproportionate assets. In that regard the High Court
has proceeded at a tangent and has on that basis also
arrived at the conclusion that the sanction for
prosecution is not proper.
15. Further it is noticed that the High Court has
recorded that the statement of the accused made to the
police during investigation is not admissible and the
procedure adopted during investigation is found to be
defective. Such conclusion would arise for consideration
only during trial and if the statement made is retracted
and there is no other material or evidence on record to
establish the charge. Hence the very manner in which
the High Court has proceeded to consider the matter is
erroneous and the conclusion reached is unsustainable.
The private respondents/accused in any event would
have the opportunity of putting forth their defence in the
trial and as such all contentions in that regard are to be
left open and any of the observations herein are limited to
the consideration of the applications for discharge and
the same shall not prejudice the case of the accused. It
is for the said reason we have not thought it appropriate
to advert more into the contentions relating to the charge
except for noticing the charge made relating to the
disproportionate assets without stating on its correctness
or otherwise.
16. In that view, the order dated 14.12.2015 passed by
the High Court and order dated 15.01.2013 passed by
Special Court are set aside. The proceedings in Special
Case No.21 of 2010 is restored to file of the Special
Court. All contentions on merits of both the sides are left
open to be urged before the Special Court in accordance
with law.
17. Accordingly, the appeals are allowed with no order
as to cost. All pending applications shall stand disposed
of.
……………………….J.
(R. BANUMATHI)
……………………….J.
(A.S. BOPANNA)
New Delhi,
September 25, 2019
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