Santosh Kumar Bhattacharjee v. State Of Bihar — 1978 DIGILAW 33 (PAT)

Judgment 1. These two applications have been heard together as Santosh Kumar Bhattacharjee is the petitioner in both the applications and the prayers are identical although couched in different expressions. Criminal Miscellaneous No. 2290 of 1977 is for quashing the proceeding against the petitioner before Shri C. S. Lal, Special Judge C.B.I. (South Bihar), Patna in Special Case No. 1 of 1975. Criminal Revision No. 869 of 1977 is for quashing order of the learned Judge dated the 20th of July, 1977 by which the learned Judge rejected the objection to framing of charge against the petitioner. 2. On 17-12-1974 N. K. Singh. Superintendent of Police, C.I.A. I, New Delhi drew up a first information report on the basis of: information received by him and registered a regular case (RC.12/74) against the petitioner in regard to offence under Sec. 5 (2) read with Sec. 5 (1) (e) of the Prevention of Corruption Act, 1947 (hereinafter referred to as the Act). The case was then entrusted to Bholan Das, D.S.P., C.B.I, for investigation. The Central Bureau of Investigation (hereinafter to be called as C.B.I.) investigated into the case and submitted charge-sheet dated 20-8-1976 before the Special Judge, C.B.I. (North Bihar). Besides other matters the chargesheet recited that facts collected during investigation disclosed offence under Sec. 5 (1) (e) of the Act. The charge-sheet was laid before the Special Judge C.B.I. (South Bihar), Patna on 30-8-1976 and order was passed purporting to be an order taking cognizance and issuance of processes against the petitioner. The learned Judge fixed 22-9-1976 for appearance of the accused. The petitioner appeared and was granted bail by the Special Judge. On 13-7-1977 the learned Judge heard counsel for the parties in regard to framing of charge. The objection on behalf of the petitioner substantially was that no offence had been committed by the petitioner and, therefore, there was no material for framing of charge. The learned Judge by order dated 20-7-1977 rejected the objections as stated earlier. The petitioner thereafter moved this court by these two applications. 3. At the time the case was instituted against the petitioner he was employed as Mining Adviser to the Managing Director, Bokaro Steel Project, Bokaro on a basic salary of Rs. 1,600 per month. Prior to taking up employment with Bokaro Steel Project, he was working at Bhilai Project since 1-7-1957 as Superintendent Ore, Mines and Quarries. 3. At the time the case was instituted against the petitioner he was employed as Mining Adviser to the Managing Director, Bokaro Steel Project, Bokaro on a basic salary of Rs. 1,600 per month. Prior to taking up employment with Bokaro Steel Project, he was working at Bhilai Project since 1-7-1957 as Superintendent Ore, Mines and Quarries. In the course of investigation the houses of the petitioner at Dhanbad and other places were searched and incriminating documents recovered. His house at Dhanbad was searched on 23-1-1975. He was discharged from service on 12-4-1975. It would also be relevant to state in order to appreciate the contentions on behalf of the petitioner that on 27-2-1958, Sec.21 of the Indian Penal Code was amended so as to bring employees of public undertaking within the category of public servants. Another relevant landmark is the date 18-12-1964 when the Parliament enacted Sec. 5 (1) (e) in the Prevention of Corruption Act thus creating possession of unaccounted assets disproportionate to known sources of income as substantive offence. In the light of the above facts I shall proceed to consider the submissions urged on behalf of the petitioner. 4. The first submission urged on behalf of the petitioner was that at the time the charge-sheet was laid in Court, the petitioner was not a public servant and, therefore, he could not be tried for an offence under Sec. 5 (1) (e) of the Act. Sec. 5 (1) (e) of the Act reads as follows:- "5 (1). A public servant is said to commit the offence of criminal misconduct- XX XX XX (e) if he or any person on his behalf is in possession of 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." It was contended that the term Public servant in the section quoted above, clearly showed that it postulates prosecution qua public servant and, therefore, any prosecution after a public servant has ceased to be so was not contemplated. I regret, I have not been able to persuade myself to accept this submission. There is no doubt that only prosecution qua public servant was contemplated, but it does not follow therefrom that the prosecution also must take place while the accused is a public servant. I regret, I have not been able to persuade myself to accept this submission. There is no doubt that only prosecution qua public servant was contemplated, but it does not follow therefrom that the prosecution also must take place while the accused is a public servant. Subsection (1) (e) only lays down what is criminal misconduct - punishable under Sec. 5 (2) of the Act. It does not lay down rule of procedure much less any law of limitation. In short, clause (e) only creates an offence. Under the Criminal Jurisprudence of this country whenever an offence is committed, the offence can be tried at any point of time unless any limitation is put thereon. Illustration of such prohibition is to be found in Sec. 468 of the Code of Criminal Procedure 1973, Sec.106 of the Factories Act, Sec.36 of the Bihar Shops and Establishments Act etc. Thus wherever the legislature has intended putting a guillotine on the period beyond which an accused may not be prosecuted, provision has been made in that behalf. There cannot be any doubt that the prosecution under Sec. 5 (1) (e) of the Act has to be qua public servant, the petitioner will be tried qua public servant as his conduct as a public servant alone will be in question at the trial. Learned counsel for the petitioner in order to strengthen his argument submitted, that Sec. 5 (1) of the Act opens with the expression A public servant but thereafter the expression A public servant has not been used in any of the clauses except Cl. (e). This according to Mr. Ghose, clearly indicated that the intention of Parliament was to put a guillotine on prosecution, so that no public servant was harassed after he had ceased to be a public servant. The submission, I regret, does not stand careful scrutiny. It is true redundancy is not to be attributed to Parliament but sometimes the law making body uses expressions in order to make its intention absolutely clear, so that no ambiguity is left. The use of the expression a public servant in S. 5 (1) (e) of the Act is one such illustration. The intention of the legislature clearly was that a person who had amassed large assets disproportionate to his known sources of income must be prosecuted. The use of the expression a public servant in S. 5 (1) (e) of the Act is one such illustration. The intention of the legislature clearly was that a person who had amassed large assets disproportionate to his known sources of income must be prosecuted. With the increase in corruption among public servants the Parliament transformed the rule of evidence into a substantive offence. That object would be frustrated if a public servant while acting as such got off with impunity, if he could not be apprehended while in service. It would be a moral booster for corrupt public servants. I see no justification legal or ethical for accepting the submission urged on behalf of the petitioner. The Prevention of Corruption Act not having placed any limitation in regard to period of prosecution, I am unable to read S. 5 (1) (e) of the Act as suggested by learned counsel for the petitioner. The submission, therefore, that a person cannot be tried for having committed an offence of criminal misconduct in terms of S. 5 (1) (e) of the Act after the public servant has ceased to be so has no substance and must be rejected. 5. The second submission urged on behalf of the petitioner was that S. 5 (1) (e) of the Act made (offence); possession of unaccounted pecuniary resources or property disproportionate to known sources of income not mere possession of property disproportionate to known sources of income. On this hypothesis it was contended that the obligation to account for possession of resources of property disproportionate to known sources of income was only to the employer (in the instant case Bokaro Steel Ltd.) and not to any other agency, either the police, the C.B.I. or the court. The submission has only got to be stated to be rejected. Once the Legislature creates an offence, the prosecuting agency comes in. The choice or volition of the employer in regard to prosecutions becomes irrelevant. There can be no doubt that it is only possession of unaccounted pecuniary resources of property punishable, but the ultimate accountability must be to a Court set up to try offences. Once the Legislature creates an offence, the prosecuting agency comes in. The choice or volition of the employer in regard to prosecutions becomes irrelevant. There can be no doubt that it is only possession of unaccounted pecuniary resources of property punishable, but the ultimate accountability must be to a Court set up to try offences. Merely because the employer has not considered it appropriate or does not call upon the public servant to account for his property can be no bar to a Court applying itself to consider whether offence under S. 5 (1) (e) of the Act has been committed by an accused or not. A court legally constituted cannot be shut out from applying itself to materials collected during investigation. After the materials have been placed before a Court then the question will arise whether the asset alleged to have been acquired by the accused has been accounted for or not. An accused, has, therefore, to account for his assets before a Court. An accused would be perfectly within his rights to refuse to co-operate with the investigating agency in order to convince them that there was no unaccountable asset disproportionate to his known resources of income, but the risk will be entirely his. If he does not intend to convince the police that he is not in possession of unaccountable assets, he takes the risk of inviting submission of charge-sheet by the police upon materials collected by them. But I am not for a moment prepared to accept that in terms of S. 5 (1) (e) of the Act a public servant referred to therein is liable to account for his property or pecuniary resources only to his employer and that his employer alone can launch prosecution if it was satisfied that the public servant possessed assets disproportionate to his known sources of income. In the instant case, the C.B.I. collected materials which will show prima facie that the petitioner was liable to be tried for having committed an offence under S. 5 (1) (e) of the Act. I am not for a moment suggesting that the police has the last say. After the C.B.I. finished its part it will be for the special Judge to consider whether there was prima facie material indicating commission of offence under Sec. 5 (1) (e) of the Act. I am not for a moment suggesting that the police has the last say. After the C.B.I. finished its part it will be for the special Judge to consider whether there was prima facie material indicating commission of offence under Sec. 5 (1) (e) of the Act. The next stage testing the materials collected by the C.B.I. will be when the charge is to be framed and the third point of accountability will be the trial itself. For the reasons, stated above, there is no substance in the submission that the petitioner was liable to account for his assets only to his employer. The matter relating to the satisfaction of the employer in regard to his resources would be a departmental matter, but that would be entirely irrelevant for prosecution under Sec. 5 (1) (e) of the Act. The reckoning must be before a Court. If he cannot satisfactorily account for his assets, the Court will come to the conclusion that the petitioner was in possession of pecuniary resources or property disproportionate to his known sources of income for which the petitioner could not render any account. The conclusion of the C. B. I. or Bokaro Steel Ltd. would be absolutely insignificant in that regard. The conclusion of the C. B. I. is only relevant for the prosecution to make up its mind whether the accused should be tried or not. For the reasons, stated above, this submission urged on behalf of the petitioner is devoid of any substance and must be rejected. 6. Learned counsel for the petitioner also submitted that in terms of S, 5 (1) (e) of the Act possession of assets disproportionate to known sources of income prior to Dec., 1964 was not an offence and, therefore the petitioner was not liable to account for his resources between the period Feb., 1958 to the 18th of Dec., 1964. It is true that the petitioner was not a public servant in terms of S. 21 of the Indian Penal Code prior to 8-2-1958. No charge can be framed for being in possession of assets disproportionate to his known sources of income on any date prior to 18-12-64. I have no doubt that the offending period must be some date between 18-12-1964 when S. 5 (e) was enacted and 12-4-1975 when the petitioner was discharged from service. No charge can be framed for being in possession of assets disproportionate to his known sources of income on any date prior to 18-12-64. I have no doubt that the offending period must be some date between 18-12-1964 when S. 5 (e) was enacted and 12-4-1975 when the petitioner was discharged from service. Reliance placed by learned counsel for the petitioner on State of Maharashtra V/s. K. K. S. Ramaswamy, ( AIR 1977 SC 2091 ) : (1977 Cri LJ 1740) is of no consequence. In that case the accused had been tried for being in possession of assets disproportionate to his known sources of income on 17-5-1964, when there was no offence like S. 5 (1) (e), but there was only a rule of evidence in terms of S. 5 (3) of the Act. The position in the instant case, is different. It will be for the prosecution at the time of framing of charge to state on what date they allege the petitioner to be in possession of assets disproportionate to his known sources of income. In what manner the prosecution will prove, will be for them and no objection can be raised in that behalf for the present. All the submissions urged on behalf of the petitioner are thus devoid of any substance and must be rejected. 7. There is, however, yet another aspect of the matter. On looking into the order sheet, I find that the learned Judge has not taken cognizance of the offence as yet. Without taking cognizance a special Judge has no jurisdiction to frame charge against an accused and to proceed with the trial. The charge-sheet submitted by the C.B.I. was put up before the Special Judge, North Bihar on 20-8-1976. The special Judge finding that the case related to the jurisdiction of the Special Judge (C.B.I), South Bihar, Patna directed that records be sent to that Court (to do the) needful. The records were then put up before the Special Judge, South Bihar on 30-8-1976. The order-sheet of 30-8-1976 reads as follows :- "Received from special Judge North. Register. Charge-sheet has already been submitted. Perused the charge-sheet. Cognizance is taken. Summon the accused fixing 22-9-76 for his appearance. (Dictated). Sd. (Unsigned) Special Judge (South)." It will be observed from the above that the order has not been signed by the Special Judge. The order-sheet of 30-8-1976 reads as follows :- "Received from special Judge North. Register. Charge-sheet has already been submitted. Perused the charge-sheet. Cognizance is taken. Summon the accused fixing 22-9-76 for his appearance. (Dictated). Sd. (Unsigned) Special Judge (South)." It will be observed from the above that the order has not been signed by the Special Judge. The order of that date seems to be in the pen of the Bench Clerk. In that state of affairs, it is difficult to hold that the learned Judge had brought his judicial mind to bear upon the allegations against the petitioner and the materials collected against him. Taking of cognizance implies application of judicial mind for the purpose of finding out whether an offence has been committed or not. That is a judicial process and not a clerical one. The Special Judge was therefore, required to pass order taking cognizance of the offence and issuing process. Upon the state of the record, there is scope for argument that non-application of judicial mind is patent from the fact that the order does not even bear the signature of the Special Judge. As the case is at its inception and has not proceeded far, it is just and appropriate that this procedural defect be removed. I should, however, like to observe that the case is being remanded back not to comply with a mere formality. It is a matter of substance and not of formality. The learned Special Judge will now apply himself to the facts of the case and consider whether prima facie any offence appears to have been committed by the petitioner or not. I should only like to observe that, the learned Judge will apply himself to the assets of the petitioner prior to 18-12-1964 and thereafter proceed to consider whether the petitioner acquired assets disproportionate to known sources of his income between the period 18-12-1964 and the date of his removal from service. Criminal Revision No. 869 of 1977 is being allowed only on the ground of want of order taking cognizance by the learned Judge. 8 In the result, Criminal Miscellaneous No. 2290 of 1977 for quashing the proceeding against the petitioner is dismissed, as no cognizance has been taken as yet by the learned Special Judge. Criminal Revision No. 869 of 1977 is, however, allowed because no charge can be framed until cognizance has been taken. 8 In the result, Criminal Miscellaneous No. 2290 of 1977 for quashing the proceeding against the petitioner is dismissed, as no cognizance has been taken as yet by the learned Special Judge. Criminal Revision No. 869 of 1977 is, however, allowed because no charge can be framed until cognizance has been taken. The case is remanded back to the Special Judge. C.B.I. (South Bihar), Patna. The Special Judge, C.B.I. (South Bihar) will consider whether cognizance should be taken and processes issued against the petitioner or not.