Smt. R.Sandhya, v. The State Of Andhra Pradesh,

THE HON'BLE SRI JUSTICE M.S.K.JAISWAL CRIMINAL REVISION CASE No.363 of 2009 ORDER:

The revision case is filed by the petitioner/A.2 in C.C.No.21 of 2003 on the file of the Special Judge for CBI Cases, Visakhapatnam, being aggrieved by the order dated 20-01-2009 made in Crl.M.P.No.616 of 2005 which was filed by the petitioner/accused No.2 under Section 239 Cr.P.C., to discharge her of the accusations.

2. The respondent/CBI filed the charge sheet in RC.08(A)/2000 alleging offences punishable under Sections 109 IPC., and Section 13(2) read with 13(1)(e) of the Prevention of Corruption Act (for short 'the Act'). The petitioner/A.2 is the wife of the non-petitioner/A.1. The non-petitioner/A.1 worked as Asst.General Manager, Steel Authority of India Ltd. He is alleged to have amassed wealth disproportionate to his known sources of income. Investigation was carried out on 19-042000 which revealed that the accused had assets to a tune of Rs.60,25,825/- which were in excess of the known sources of income. The petitioner/A.2 worked as resident representative in India Bureau of Industrial Services Ltd., Chennai, a private firm, from April/May 1988 and resigned in August, 2001.

The values of the movables and immovables standing in the names of the family members of the petitioner/A.2 and the non-petitioner/A.1 has been taken into account and they are shown in statements A, B, C and D in the charge sheet. The net result of the above exercise was the prima facie conclusion that the accused Officer has disproportionate assets to an extent of Rs.60,25,825/-.

3. Insofar as the petitioner/A.2/wife is concerned, it is alleged that she has abetted her husband/A.1 in accumulation of disproportionate assets by aiding him in concealing his ill-gotten wealth in the form of movable and immovable properties purchased in her name and in the

name of their children. In that view of the matter, both the petitioner/A.2 and the non-petitioner/A.1 were charge sheeted.

4. The petitioner/A.2 filed the petition under Section 239 Cr.P.C., to discharge her on the ground that a false case is registered against the accused, that A.1 never acquired assets disproportionate to his known sources of income, that A.2 never abetted A.1 in the alleged acquiring of assets, that A.1 never acquired assets in the name of A.2, that A.2 acquired the properties in her name with her own income and she also filed the income-tax returns, that the contributions made by the father of the non-petitioner/A.1, who retired as Regional Director of Medical & Health, Rajahmundry, in the year 1983, and started practice as a Surgeon in Vijayawada, was not taken into consideration, that the searches were conducted by the Investigating Officer without following the provisions of the Code of Criminal Procedure and therefore she is entitled to be discharged.

5. The respondent/CBI filed counter opposing the petition contending that the assets which were acquired by the accused could not be satisfactorily accounted for and since the properties were acquired in the name of the petitioner/wife/A.2, both of them were charge sheeted and there are no grounds to discharge.

6. By the impugned order, dated 20-01-2009, the learned Special Judge dismissed the petition holding that prima facie there is sufficient material to proceed against the petitioner/A.2 and there are no grounds to discharge her.

7. Sri Seetharam Murthy, learned senior counsel appearing for the petitioner/A2 submits that while as per the provisions of the Prevention of Corruption Act, there cannot be an abetment for the offences punishable under Sections 13(1)(e) and 13(2) of the Act, but, however, in view of the decision of the Hon'ble Supreme Court in P.Nallammal v. State[1] there is every possibility of imputation of Section 109 IPC in the case of a disproportionate of assets of public servant, but at the

same time, the Hon'ble Supreme court has laid down the parameters and ingredients which are required to be satisfied for prosecution of a non-public servant for abetment of a public servant. The learned senior counsel further submits that the facts of the present case do not answer the requirement of law as laid by the Hon'ble Supreme Court. It is further submitted that at the stage of framing of charges, the essential requirement is that the material that is placed before the Court at the pre-trial stage should prima facie be sufficient to proceed against the person arraigned as an accused.

The learned senior counsel submits that if the Judge considers that there is not sufficient ground for proceeding against the accused, the accused is entitled to be discharged and the learned Judge is required to give reasons for discharging such an accused. Only after coming to a prima facie opinion that there is a ground for presuming that the accused has committed an offence, the learned Judge shall proceed to frame the appropriate charges calling upon the accused to face trial. For the said purpose, what is required to be seen is as to whether the contents of the charge sheet coupled with the documents that are sought to be relied upon by the prosecution are sufficient for forming an opinion that there is a ground for presuming that the accused has committed the offence.

In the instant case, it is submitted that the non-petitioner/A1 who is the husband of the petitioner/A2 has been charged with being found in possession of assets disproportionate to his known sources of income. In the charge sheet, several items are mentioned in the schedule which are both movables and immovables. The list of movables comprises of all and sundry articles, including the wearing apparels of the couple and their children and even the crockery and cutlery etc. In so far as the tangible assets are concerned, one residential flat is shown to be standing in the name of the petitioner/A2 and certain investments made in the Companies which are shown at Sl.Nos.2 and 10 in the Statement-B which is shown in the charge sheet.

into consideration several aspects which are brought to their notice and has erroneously filed the charge sheet showing the wife as an accused No.2 along with the non-petitioner/A1 husband.

8. The learned Special Public Prosecutor, appearing for CBI, on the other hand, submits that the investigating agency has done a meticulous job and has taken into consideration all the sources of income of both the husband and wife and clearly came to the conclusion that the accused had assets to a tune of about Rs.60,25,825/- which is beyond known sources of income. The learned Special Public Prosecutor further submits that the learned trial Judge has considered all the aspects in proper perspective and dismissed the petition filed by the petitioner/A2 under Section 239 Cr.P.C.

9. The point that arise for consideration is; Whether the contents of the charge sheet and the material that accompanied the charge sheet is suffient for the Court to form an opinion that there is a ground for presuming that the petitioner/A2 committed an offence, as contemplated under Section 228 Cr.P.C;

Or Whether upon such consideration, there is no sufficient ground for proceeding against the accused for being discharged under Section 227 Cr.P.C.

10. Point:

Before going into the factual matrix, the legal proposition which is not in dispute may briefly be noticed.

11. The petitioner/A2 is the wife of the non-petitioner/A1. While the non-petitioner/A1 is charged with the offence punishable under Sections 13(2) and 13(1)(e) of the Act, the allegation in so far as the petitioner/A2 is concerned is one under Section 109 IPC, namely, abetment to commit an offence. For the sake of clarity, the provisions of Section 13(1)(e) are re-produced hereunder: "13(1) A public servant is said to commit the offence of criminal misconduct, --

(a) - (d) *** **** *** (b) (e) If he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Explanation:-- For the purposes of this section, 'known sources of income' means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant." Section 107 of the Indian Penal Code defines 'abetment' as under:

"107.Abetment of thing-A person abets the doing of a thing, who- First - Instigates any person to do that thing; or Secondly - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly - Intentionally aids, by any act or illegal omission, the doing of that thing."

For the "First" clause (i.e.instigation) the following Explanation is added to the section:

"Explanation I. - As person who, by willful misrepresentation, or by willful concealment of a material fact which he is bouind to disclose, voluntarily causes or procures, or attempts to cause or procure a thing to be done, is said to instigate the doing of that thing." For the "Thirdly" clause (i.e. intentionally aids) the following Explanation is added:

"Explanation 2 - Whoever, either prior to or at the time of the commission of an act, does anything in order

to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act."

12. Section 109 IPC together with its Explanation and Illustrations reads as under:

"109. Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment:- Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.

Explanation: - An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.

Illustrations (a) A offers a bribe to B, a public servant, as a reward for showing A some favour in the exercise of B's official functions. B accepts the bribe. A has abetted the offence defines in Section 161.

(b) A instigates B to give false evidence.

B, in consequence of the instigation, commits that offence. A is guilty of abetting that offence, and is liable to the same punishment as B.

(c) A and B conspire to poison Z. A in pursuance of the conspiracy, procures the poison and delivers it to B in order that he may administer it to Z. B, in pursuance of the conspiracy, administers the poison to Z, in A's absence and thereby causes Z's death. Here, B is guilty of murder.

A is guilty of abetting that offence by conspiracy, and is liable to be punishment for murder."

13. Sections 227 and 228 of Cr.P.C reads as under:

"227. Discharge:-- If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."

"228. Framing of charge:--

(1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which - (a) Is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, {or any other Judicial Magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate or, as the case may be, the Judicial Magistrate of the first class, on such date as he deems fit, and thereupon such Magistrate} shall try the offence in accordance with the procedure for the trial of warrantcases instituted on a police report; (b) Is exclusively triable by the Court, he shall frame in writing a charge against the accused.

(2) Where the Judge frames any charge under clause (b) of sub-section (I), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.

14. The petitioner/A2 is a non-public servant. While she cannot be prosecuted for substantive offence punishable under the provisions of the Prevention of Corruption Act, however, in view of the decision of the Hon'ble Supreme Court in P.Nallammal v. State (1 Supra) she can be prosecuted for the offence punishable under Section 109 IPC, provided it is prima facie shown that she by her conduct has persuaded the public servant to do certain acts falling foul of the provisions of the Prevention of Corruption Act. I n P.Nallammal v.

State (1 supra) while upholding the contention that the non-public servant can also be tried along with the public servant, the Hon'ble Supreme Court in para-24 made the following observations: "24. Shri Shanti Bhushan cited certain illustrations which, according to us, would amplify the cases of abetments fitting with each of the three clauses in Section 107 of the Penal Code vis-à-vis Section 13(1)(e) of the PC Act.

The first illustration cited is this:

If A, a close relative of the public servant tells him of how other public servants have become more wealthy by receiving bribes and A persuades the public servant to do the same in order to become rich and the public servant acts accordingly. If it is a proved position there cannot be any doubt that A has abetted the offence by instigation.

Next illustration is this:

Four persons including the public servant decide to raise a bulk amount through bribery and the remaining persons prompt the public servant to keep such money in their names. If this is a proved position then all the said persons are guilty of abetment through conspiracy. The last illustration is this:

If a public servant tells A, a close friend of his, that he has acquired considerable wealth through bribery but he cannot keep them as he has no known source of income to account, he requests A to keep the said wealth in A's name, and A obliges the public servant in doing so. If it is a proved position A is guilty of abetment falling under the "Thirdly" clause of Section 107 of the Penal Code."

15.

Therefore, if the petitioner/A2 is to be presumed to have committed the offence of abetting the public servant in amassing the assets disproportionate to his known sources of income, the First illustration, cited supra, should be prima facie made.

16. In so far as the scope of enquiry at the stage of considering the

material on record for proceeding with the framing of charge or discharging the accused, the following decision of the Hon'ble Supreme Court laid down the nature of enquiry that is contemplated at that stage.

17.

I n State of H.P. v. Krishan Lal Pardhan[2] the Hon'ble Supreme Court held that it is no doubt true that a Magistrate or Special Judge is empowered under Section 239 Cr.P.C to discharge the accused on the ground that the charge against him is groundless, that all that is required at the stage of framing of charge is to see whether a prima facie case regarding the commission of certain offences is made out, that the question whether the charges will eventually stand proved or not can be determined only after evidence is recorded in the case.

18. In State of Orissa v. Debendra Nath Padhi[3] the question that fall for consideration for the Supreme Court was as to whether the trial Court at the time of framing of charge can consider material filed by the accused and the same was answered as under:

"The law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. No provision in the Code of Criminal Procedure, 1973 grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial. Satish Mehra case, (1996) 9 SCC 766 holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided. It is well settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence."

19. The Hon'ble Supreme Court further observed that the provisions of Section 227 Cr.P.C. are incorporated in the Code with a view to

save the accused from prolonged harassment which is a necessary concomitant of a protracted criminal trial, and that it is calculated to eliminate harassment to accused persons when the evidential materials gathered after investigation fall short of minimum legal requirements, and that if the evidence even if fully accepted cannot show that the accused committed the offence, the accused deserves to be discharged.

20. In support of his contention, learned Counsel for the petitioner relied upon a decision reported in State of M.P. v. Mohanlal Soni[4]. It is laid down that at the stage of framing charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed.

Per contra, if the evidence which the prosecution proposes to produce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the particular offence, then the charge can be quashed. Learned Counsel further relied upon a decision reported in Rukmini Narvekar v. Vijaya Satardekar and others[5], wherein it is laid down that even though the Court at the stage of framing charges has to look into the material that is placed along with report but there is no scope for the accused to produce any evidence in support of his submissions, but, however, in a proceeding under Section 482 Cr.P.C.

, the Court is free to consider the material that may be produced on behalf of the accused to arrive at a decision whether charge as framed could be maintained. 21.

I n Sheoraj Singh Ahlawat v. State of U.P.[6] the Hon'ble Supreme Court held as under:- "While framing charges, Court is required to

evaluate the materials and documents on record to decide whether facts emerging therefrom taken at their face value would disclose existence of ingredients constituting the alleged offence. At this stage, the Court is not required to go deep into the probative value of the materials on record. It needs to evaluate whether there is a ground for presuming that accused had committed offence.

But it should not evaluate sufficiency of evidence to convict accused. Even if there is a grave suspicion against the accused and it is not properly explained or Court feels that accused might have committed offence, then framing of charges against the accused is justified. It is only for conviction of accused that materials must indicate that accused had committed offence but for framing of charges if materials indicate that accused might have committed offence, then framing of charge is proper. Materials brought on by prosecution must be believed to be true and their probative value cannot be decided at this stage. The accused entitled to urge his contentions only on materials submitted by prosecution. He is not entitled to produce any material at this stage and the Court is not required to consider any such material, if submitted. Whether the prima facie case is made out depends upon facts and circumstances of each case.

If two views are possible and materials indicate mere suspicion, not being grave suspicion, against accused then he may be discharged. The Court has to consider broad probabilities of case, total effect of evidence and documents produced before it. The Court should not act as mouthpiece of prosecution and it is impermissible to have roving enquiry at the stage of framing of charge." 22.

In view of the above authorities of the Apex Court, what is required to be seen is as to whether the material that is placed before the Court even if fully accepted, do not show that the petitioner/A2 has abetted the non-petitioner/A1 to amass wealth disproportionate to his known sources of income, so as to discharge her of the alleged charge.

23. Coming to the facts of the case, as could be culled out from the

material that is placed by the Investigating Agency is that the nonpetitioner/A1 was working as Senior Executive in Steel Authority of India Limited, Visakhapatnam, having joined in the said organization on 21.01.1979. The petitioner/A2 was married on 11.06.1980. They had one son and daughter having born in 1981 and 1989 respectively. The petitioner/A2 herself worked as Resident Representative in Indian Bureau of Industrial Services Limited, Chennai from April, 1988 to August, 2001. She was an Income Tax Assessee and all along filing the income tax returns. The non-petitioner/A1 is the son of one R.Govindarajulu, who had worked as Superintendent in Government Hospital, Kagaznagar, Anantapur, Viziawada and retired as a Regional Director of Medical and Health on attaining the age of 55 years in 1983. The said Govindarajulu is a Master of Surgery and even after retirement, he has independent practice. 24.

The Investigating Agency has taken the check period from 01.01.1988 to 19.04.2000. Summarizing the details, the calculation of disproportionate assets held by the non-petitioner/A1 as on 19.04.2000 is stated as under:

1.

Assets held on 19.04.2000 (St.B) Rs.71,87,894-69 2.

Assets held on 31.12.1987 (St.A) Rs.1,95,853-00 3.

Assets acquired during the check period Rs.69,91,541-69 4.

Expenses during check period (St.D) Rs.16,84,684-71 5.

Total assets and expenses of check period Rs.86,76,226-40 6.

Income during check period (St.C) Rs.26,50,400-75 7.

Extent of disproportionate assets Rs.60,25,825-65

25. The charge sheet contains the income of the petitioner/A2 also in her capacity as a Resident Representative in India Bureau of Industrial Services Limited, Chennai from April, 1988 to August, 2001, the income tax returns filed by the petitioner/A2 and the non-

petitioner/A1 were also referred to. Statement-A shows the assets at the beginning of the check period, which have been quantified at about Rs.1.95 lakhs, they are all movable properties and there is no immovable in the Statement-A. The Statement-B deals with the assets at the closure of the check period, i.e. as on 19.04.2000, and the total of both movables and immovables have been stated to be Rs.71.87 lakhs. The income of the family of both the petitioner/A2 and the nonpetitioner/A1 are shown in the Statement-C at Rs.26,50,000/-. Approximately the expenditure of the family during the check period is shown in the Statement-D as Rs.16,84,000/-.

26. A careful perusal of the contents of the charge sheet shows that by the end of check period, there was a house site in the name of the petitioner/A2 and a flat at Visakhapatnam. So also, the statements also show that the Bank balances in the name of the petitioner/A2 in different banks which are about Rs.3.60 lakhs. The rest of the properties shown in Statement-B are in the name of the nonpetitioner/A1.

27. What is noticed from the above is that the approximate value of the assets standing in the name of the petitioner/A2, even according to the investigating agency, are in the range of less than Rs.25 lakhs. The charge sheet also shows that out of certain investments made by the non-petitioner/A1, she has earned interest and dividends over and above her own salary.

28. The petitioner/A2 who filed the petition to discharge her, stated in the petition in detail about her known sources of income. Without going into detail about the said assets, suffice it to observe that each and every receipt and payment that is made by and in favour of the petitioner/A2 are by way of cheques and demand drafts and they are reflecting in the statement of bank accounts. It is also placed on record that from 1994-95 the petitioner/A2 has been an income tax assess and even in the year 2000-01 she has declared her gross income as Rs.3,13,000/- and has paid advance tax at about Rs.20,000/-. These

are all the transactions and documents prior to the date when the inspection was carried out by the investigating agency.

29. One aspect, however, need to be mentioned. It is stated that one flat is standing in the name of the petitioner/A2. As per the documents, the sale price of the said flat was Rs.12,10,000/-, and the petitioner/A2 has admittedly taken the house building loan from HDFC Bank to an extent of Rs.5,00,000/-. This property the investigating agency has valued at Rs.21,62,000/- on the basis of the estimation said to have been made by the CPWD Department of Government of India. Even this valuation is made on the basis of a videograph and it is alleged that the said flat is worth more than Rs.21,62,000/- and is under valued in the sale transaction at Rs.12,10,000/-. The learned senior counsel appearing for the petitioner/A2 submits that the procedure adopted by the investigating agency is strange and cannot be accepted. The flat was purchased in the year 1997 and only after 19.04.2000 on the basis of estimation of CPWD Department, the Authorities of Engineering Department have given the valuation of the flat at about Rs.21,62,000/- as against the sale price of Rs.12,10,000/-

30. As has been discussed above, for coming to the prima facie conclusion, that the ingredients of Sections 227 and 228 Cr.P.C are to be fulfilled, the allegations need to be specific and pointed out in the charge sheet. On the basis of a vague or omnibus allegations, it cannot be said that the Court can form an opinion that there is a ground for presuming that the accused has committed an offence or for that matter to hold that there is sufficient ground for proceeding against the accused.

31.

In the case on hand, the charge sheet, after giving the statements, referred to above, makes allegations in so far as the petitioner/A2 is concerned in the following words: "Smt.R.Sandhya (A-2) has actively assisted and instigating her husband (A1) in amassing illegal wealth. Sri R.Kishore (A-1) while he was a public servant in Steel Authority of India Ltd., (SAIL) by the aforesaid

acts and Smt.R.Sandhya (A-2) by actively assisting and instigating her husband (A-1) in amassing illegal wealth have committed offence punishable U/s.109 IPC."

32. Excepting for the above, nothing further was mentioned as to what was nature of assistance or instigation made by the petitioner/A2 to the non-petitioner/A1. Merely because one or two properties of family stand in the name of the petitioner/A2 and she is the wife of the public servant, it cannot be said that she has committed the criminal offence, as contemplated under Section 109 IPC. 33.

The learned senior counsel appearing for the petitioner/A2 submits that it is a clear case where calling upon the petitioner/A2 to face the protracted criminal trial will be nothing but sort of harassment which goes with the protracted criminal trial. The object of Section 227 Cr.P.C will be defeated if the petitioner/A2 is called upon to prove her innocence after facing the prolonged trial. Her husband, the nonpetitioner/A1 is however being prosecuted and all the properties standing in the name of family members, including the properties that are in the name of the petitioner/A2 are taken to be the income of the family and it is for the non-petitioner/A1 to prove that all the assets and properties that stand in the name of the family are acquired with the means of his and their known sources of income.

34. The learned senior counsel appearing for the petitioner further submits that the discharge of the petitioner/A2-wife do not in any way affect the prosecution in so far as it is against the non-petitioner/A1 is concerned. All the properties belong to the non-petitioner/A1 and which also stands in the name of the petitioner/A2 are already computed in the name of the non-petitioner/A1 for the purpose of the case and therefore, it is for the non-petitioner/A1 to discharge the burden of proof in the trial Court that the properties standing in the name of the petitioner/A2 legitimately belong to her which was acquired with her personal income or is with the known source of income of her husband. Since the petitioner/A2 is a non-public servant

and is presently house wife, the burden is on her husband/A1 to show that the properties which are standing in the name of the petitioner/A2, which are included and computed in the assets of the nonpetitioner/A1, actually belong to her and they were not acquired with the income of the public servant.

35. In view of the foregoing discussion and upon careful perusing the voluminous material that is placed on record by the prosecution, I have no hesitation in holding that there is no material on record to proceed against the petitioner/A2 by forming an opinion that the petitioner/A2 has committed the offence of abetting the public servant in amassing wealth beyond his known sources of income. Therefore, the petitioner/A2 is entitled to be discharged. It is needless to say that the discharge of the petitioner/A1 will not in any affect the trial against the non-petitioner/A1 and also do not imply exclusion of the properties standing in the name of the petitioner/A2 while computing the assets of the non-petitioner/A1.

36.

The Criminal Revision Case is accordingly allowed. The impugned order dated 20.01.2009 is set aside. The petitioner/A2 stands discharged of the charges leveled against her.

37. Pending miscellaneous applications, if any, shall stand closed in consequence.

________________ M.S.K.JAISWAL,J Date: .10.2015 Dsr [1] (1999) 6 SCCC 559 [2] (1987) 2 SCC 17 [3] (2005) 1 SCC 568 [4] (2000) 6 SCC 338 [5] AIR 2009 S.C. 1013 [6] (2013) 11 SCC 476