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2001 DIGILAW 35 (JK)

M. K. Jalali v. State Of J. &K.

2001-02-13

G.D.SHARMA

body2001
JUDGMENT 1. This revision petition is directed against the order dated 19-09-2000 passed by the learned Special Judge, Anti Corruption, Jammu whereby he rejected applications No. 162/ Misc/2000 and 170/Misc/2000 and accepted application No. 171/Misc/2000. 2. In application No. 162/Misc/2000 petitioner no. 2 had made a prayer for the release of cash amount of Rs. 19,86,150/- in her favour by showing that the said amount was a part of the price of her and her sons house situated in Trikuta Nagar, Jammu which she alongwith her sons had agreed to sell to M/s Devki Nandan Kapoor and Others. The agreement of sale was executed on 8-12-1997 and part of the sale price amounting to Rupees Twenty Lakhs was received by her and her sons. The Vigilance Organisation in the raid conducted in the house of petitioner no. 1 had seized the said amount showing the same as un-accounted wealth of petitioner no. 1. Petitioner no. 2 (Smt. Nirmala Jalali) had shown this amount in the Income Tax returns filed before the Income Tax Authorities as part of the consideration for the sale of the house. The learned trial Judge rejected the application on the ground that this was an afterthought defence concocted in order to escape the penal consequences. No record for the alleged sale was produced before the Investigating Agency in order to save the seizure of exorbitant amount of Rupees Nineteen Lakhs Eighty Six Thousands One Hundred and Fifty. 3. In application No. 173/2000, petitioner no. 1 had made the prayer for placing on record 76 documents, photostat copies thereof except few (which were in original form) were accompanying the application. The trial Judge disallowed their production as their genuineness was doubted. The rejection of their production was however, made limited for that stage of the case and the order had no bearing for their production at subsequent stage of the proceeding. 4. These (two) applications were rejected by the common order dated 19-9-2000 and in terms of the same order application no. 171/ 2000 was accepted. Respondent state has not challenged the order so far as acceptance of application No. 171/2000 is concerned but the petitioner has challenged the rejection on the following grounds. 4. These (two) applications were rejected by the common order dated 19-9-2000 and in terms of the same order application no. 171/ 2000 was accepted. Respondent state has not challenged the order so far as acceptance of application No. 171/2000 is concerned but the petitioner has challenged the rejection on the following grounds. i) The case was registered in the Vigilance Organisation against the petitioners on 7-12-1997 and at that time no disclosure of any income could be made as under the Income Tax Act, the assessing year could not have ended in March, 1998 and the disclosure was to be made in the statement of the year 1998-99. ii) Under law, petitioner no. 1 was required to explain the dis-proportion-ate part of his assets constituting an offence before the trial Court and not before the investigating agency. At no stage any questionnaire was served on petitioner no. 2 to explain the disproportionate nature of her assets and she was denied the right to explain that house belongs to her and her sons. The view taken by the trial court runs contrary to the law laid down by the Apex Court in the case of State of Maharashtra and others vs. Ishwar Piraji Kalpatri and Others (AIR 1996 SC722). iii) The procedure which applies for the trial of an accused in a warrant case also applies for the trial of a case arisen under the J&K Prevention of Corruption Act. Under sub-section (2) of Section 251-A, Cr. P.C. the Magistrate/ trial Judge by following the procedure has to consider all the documents referred to in section 173 Cr. P.C. and make their examination. The Magistrate/trial Judge can make the examination of any of the giving the prosecution and the accused an opportunity of being heard, he considers the charge against the accused to be groundless, he has to discharge him. 5. In the instant case, while following the aforesaid prescribed procedure, the learned Special Judge, Anti Corruption, Jammu has to consider all the documents referred to in Section 173 Cr. P.C. He has to make the examination of such of the petitioners as he would think necessary and after giving the prosecution and the accused/ petitioners an opportunity of being heard, order of discharge can be passed. The examination of the petitioner/ petitioners has to be made not in a casual manner but application of mind is required. P.C. He has to make the examination of such of the petitioners as he would think necessary and after giving the prosecution and the accused/ petitioners an opportunity of being heard, order of discharge can be passed. The examination of the petitioner/ petitioners has to be made not in a casual manner but application of mind is required. The trial Judge is simultaneously required to consider the documents upon which such petitioner or petitioners while advancing this argument, support has been derived by the learned counsel by citing the law laid down by the Apex Court in the case of State of Madhya Pradesh vs. Mohan Lal Soni (Special Leave Petition (CRL) No. 593 of 1999 decided on July 19, 2000 and copy annexed as annexure-D). 6. Heard the arguments. 7. Mr. Goja the learned counsel had contended that the learned trial Court has committed grave error in law which has carried the mis-carriage of justice when the production of the documents was refused. Their examination was very relevant at the time of making the examination of any of the accused petitioner/ petitioners and alleged dis-proportion-ate assets could be explained. In their absence, the examination of the accused at the time of framing the charge cannot be made in the sense as is contemplated under section 251-A, Cr. P.C. The Apex Court had considered a relevant document at this stage in the case of Satish Mehra vs. Delhi Administration and another, 1996(5) Supreme 742. The Income Tax Officer, Ward No. 5, Jammu in his order of assessment for the year 1998-99 had judicially held that petitioner no. 2 and her sons had received sale price of the house in the sum of Rs. 20.00 lakhs. This is the finding of a competent Court and has relevance to the controversy in question. The investigating agency never interrogated petitioner no. 2 with regard to the seized amount and the documents in support of the receipt of the part of sale consideration would have exculpated the petitioners from drawing up this charge. The placing of record of all the above stated documents and their consideration by the learned trial Judge would result in the discharge of the petitioners from undergoing the process of prosecution. The placing of record of all the above stated documents and their consideration by the learned trial Judge would result in the discharge of the petitioners from undergoing the process of prosecution. The Apex Court in the case of State of Madhya Pradesh vs. Mohan Lal Soni (supra) has confirmed the order of the High Court for setting aside the order of the trial Court for framing the charge against the accused when accused had explained dis-proportionate assets even at the stage of framing the charge. 8. In rebuttal, it has been contended by the counsel for the respondent that there is no illegality in the order passed by the trial Court in rejecting the applications in question. The only illegality which has been committed is in accepting application No. 171/2000. The petitioners have been allowed to operate the Bank Accounts which had been seized by the Investigating Agency. The learned counsel has cited the case of State of Maharashtra vs. Tapas D. Neogy (1999 AIR SCW 2289), wherein it is held that the Bank account of the accused or any of his relation is "property" within the meaning of Section 102 of Criminal Procedure Code (Central Code) and a police officer is course of investigation can seize or prohibit the operation of the said account if such assets have direct links with the commission of the offence for which the police officer is investigating into. He has also cited the case of State Anti Corruption Bureau, Hyderabad and another vs. P. Suryaprakasam (1999 SCC (Cri) 373) wherein it is held that at the time of framing of a charge, what the trial court is required to do is to consider the police report referred to under-section 173 Cr. P.C. and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that. Of course, at that stage the accused may be examined but that is a prerogative of the Court only. Lastly, the counsel has contended that revision petition is not maintainable because of the embargo placed by sub-clause (4-a) of section 435 of Cr. P.C. The order impugned is of interlocutory nature and cannot be revised. 9. The rival submissions of the counsel for the parties have been considered. Lastly, the counsel has contended that revision petition is not maintainable because of the embargo placed by sub-clause (4-a) of section 435 of Cr. P.C. The order impugned is of interlocutory nature and cannot be revised. 9. The rival submissions of the counsel for the parties have been considered. It is held at the threshold that revision petition is not maintainable because the impugned order is of interlocutory nature. The order has not determined the rights of the parties as it is not an order of final nature to have terminated the proceedings. The trial Court has dis-allowed the applications on the ground that the claim on the seized amount prima facie appeared as a defence of after thought. The amount of Rs. 20.00 lakhs is not a small amount and no sane vendee would have parted with it without getting executed a valid document indicating its receipt by the vendor. Petitioner No. 3 has to explain why she had failed to produce any such document either at the time when it was seized or at the subsequent relevant stage. Refusal to take on record 76 documents at this stage of the proceedings has not prejudicially determined the rights of the petitioners because the trial Court has left open their production at the relevant stage. In the closing line of the order (at the top of page no. 9) the words used are, this application is rejected at this stage. The Apex Court in the case of Satish Mehra vs. Delhi Administration (supra) had allowed the production of the material by the accused even at the stage of framing the charge as it was of such a nature that it could clinch the issue. The trial Judge could exercise such a power only after becoming certain that there is no prospectus of the case ending in conviction. It can be done to save the valuable time of the Court to be wasted for the purpose of formally completing the procedure to pronounce the conclusion on a future date. In the Satish Mehras case (supra) complaint was filed by the wife against her husband and the allegations were of committing sexual offences against her 18 months old female child. The complaint was bereft of any truth and such a course of action was allowed to get on record documentary evidence of clinching nature. In the Satish Mehras case (supra) complaint was filed by the wife against her husband and the allegations were of committing sexual offences against her 18 months old female child. The complaint was bereft of any truth and such a course of action was allowed to get on record documentary evidence of clinching nature. In the case of State of Madhya Pradesh vs. Mohan Lal (supra) (which has been cited by the counsel for the petitioner), only that record was considered by the trial court at the time of framing the charge which had been collected during the course of investigation and produced before the Court. The finding of the Income Tax Officer to treat the seized amount as part of the sale price of the house in question has no relevancy in these proceedings as it is not a judgment in rem. It can still be produced at the time of entering into defence in case petitioners are charged by the trial Court. The counsel for the petitioners has failed to convince that by the production of these documents, the controversy can be settled finally as they are of such a nature that no doubt can be expressed for their genuineness. There is a prescribed procedure how these documents would get proved. The prosecution has to be afforded an opportunity to look into their genuineness and relevancy in the proceedings. 10. In view of the discussion made above, it is held that the impugned order does not suffer from any illegality or impropriety to be interfered with while invoking the revisional jurisdiction. On the other hand, the order is found of interlocutory nature and it cannot be challenged in view of the embargo contained in Section 435 (4a) of the Code of Criminal Procedure. The petitioners have the opportunity available to them under Section 5(1) (e) of the J&K Prevention of Corruption Act for satisfactorily explaining about their assets and resources before the trial court, when the trial commences and not at an early stage. With these findings the revision petition is dismissed. The learned trial Judge is directed to conduct the proceedings as expeditiously as possible and the petitioners are directed to appear before his court on 19-2-2001.