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2004 DIGILAW 482 (PAT)

Surendra Nath Verma v. State Of Bihar

2004-04-27

CHANDRA MOHAN PRASAD

body2004
Judgment Chandra Mohan Prasad, J. 1. This application is directed against the impugned order dated 15.12.2003 of the Special Judge, Vigilance, Patna, passed in Special case No. 79 of 1992 whereby the petitioners prayer for discharging him was dismissed and framing of charge against the petitioner was ordered. 2. Initially first information No. 39 of 1992 dated 2.11.1992 was filed in this case and thereafter on completion of investigation charge-sheet No. 01 of 2000 dated 4.1.2000 for offences u/s. 5(2) read with sec. 5(1 )(e) read with 13(2) read with sec. 13(1)(e) of the Prevention of Corruption Act, was filed against the petitioner. 3. The petitioner, during the relevant check period 1959 to 1979 was serving as a Divisional Manager in the State Ware Housing Corporation, Maurya Complex. The facts in brief as mentioned in the charge-sheet is that during the check period the petitioner received a total salary of Rs. 1,23,850.00 and after deduction of necessary expenses in maintenance of his family total saving of Rs. 41,283.00 would be allowed as saving money. That the petitioner received a sum of Rs. 8175.00 from LIC. Further he received a sum of Rs. 18, 192.00 through sale of different plots of land which was gifted by petitioners mother-in-law to petitioners wife. The petitioner further received a sum of Rs. 92500.00 through sale of land standing in the name of his wife. Besides, this a sum of Rs. 38281.00 was received by the petitioner under different LIC policies and a sum of Rs. 1500.00 was also taken by the petitioner as loan from his GPF. Thus the total savings as shown in the charge-sheet, was of Rs. 1,99,931.00 . 4. As to the assets acquired by the petitioner during the check period the charge-sheet mentioned that the petitioner had purchased a land at Muzaffarpur in the name of his wife and constructed a house, over it. Both valued at Rs. 1,56,423.00 . Further the petitioner purchased lands in the name of his wife and son for Rs. 25,400. A car for Rs. 19.801.00 was also purchased by the petitioner in 1967. Besides this a sum of Rs. 13,810.00 was also invested by the petitioner in LIC premium. Lastly a sum of Rs. 33,732.00 was found to have been invested by the petitioner in UTI during the check period. Thus the total assets of the petitioner was shown in the charge-sheet at Rs. 19.801.00 was also purchased by the petitioner in 1967. Besides this a sum of Rs. 13,810.00 was also invested by the petitioner in LIC premium. Lastly a sum of Rs. 33,732.00 was found to have been invested by the petitioner in UTI during the check period. Thus the total assets of the petitioner was shown in the charge-sheet at Rs. 2,49,166.00 whereas his total earnings during the period was of Rs. 2,49,166.00 whereas his total earnings during the period was of Rs. 1,99,931.00 According to the charge-sheet the differences between the assets and the earnings was through unknown source of income. 5. While considering the matter of framing charge the learned trial Court, as if appears from the impugned order dated 15.12.2003 had considered some other materials in paragraph 24, 29 and 32 of the case diary. According to paragraph 24 and 29 of the case diary as discussed by the learned trial Judge the petitioner got a house situated at Boring Road, Patna valued at Rs. 2,68,530.00 . According to paragraph 32, of the case diary as discussed in the impugned order the house and articles found in the house at Muzaffarpur was valued at Rs. 4,43,742.00 . Adding these two items as in paragraph 32 of the case diary the petitioners total assets was considered of Rs. 9,61,138/. 6. During hearing the learned counsel for the petitioner Sri S.B.K. Manglam, Advocate argued that so far the petitioners house is concerned its value at Rs. 1,56,423.00 has already been taken into account of the petitioners assets but again it has been repeated and its value has been further added at Rs. 4,43,742.00 . The learned Counsel for vigilance Sri. Y.V. Giri, Senior Advocate replied that even if the repeated figure is excluded from the consideration, the total assets of the petitioner after such exclusion still remains highly disproportionate to his known source of income. The learned counsel or the petitioner argued that the petitioners son was employed in service in the year 1980 and the other son also started business and they contributed to the family but this aspect has not been considered while consolidating the assets of the petitioner. It was also argued that the petitioner has got some agricultural income also which has also not been taken into account. It was also argued that the petitioner has got some agricultural income also which has also not been taken into account. The learned Counsel for vigilance replied that there is no specific contribution to the family through such source as argued by the petitioner and that it is a defence taken by the petitioner which can be proved during the trial only. It was also argued that the prima facie material as brought on the record through the charge-sheet and the case diary is sufficient to show a prima facie case against the petitioner and thus he has to be put on trial after framing of charges. 7. The petitioner has invoked this Courts power u/s. 482 of the Code of Criminal Procedure (hereinafter referred to as the Code and has prayed for quashing of the impugned order dated 15.12.2003 which directs for framing of charges against the petitioner on the aforesaid materials in the charge-sheet and the case diary. The learned Counsel for vigilance cited the case of State of Bihar V/s. Murad Ali Khan, reported in 1988 (4) SCC 655 [: 1989 PLJR(SC)6] wherein the Apex Court has held : "Jurisdiction u/s. 482 Cr PC has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Court should not embark upon an inquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the trial Magistrate when the evidence comes before him. Though no inflexible rules could be laid down to regulate the High Courts jurisdiction, when the High Court is called upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence, the High court is guided by the allegations, whether those allegations, set out in the complaint or the charge-sheet, do not in law constitute or spell out any offence and whether resort to criminal proceed would, in the circumstances, amount to an abuse of the process of the Court or not." 8. The case of State of Karnataka V/s. De and Anr. reported in AIR 2002 SC, 671 was also cited by the learned Counsel. The case of State of Karnataka V/s. De and Anr. reported in AIR 2002 SC, 671 was also cited by the learned Counsel. At paragraph 9 of the judgment in the case the Apex Court held : "The powers possessed by the High Court u/s. 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material." The Apex Court further held : "It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it (sic) that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under sec. 482, of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as whole. 482, of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as whole. If it appears that on consideration of the allegations in the light of statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court." In another case of State by Central Bureau of Investigation V/s. S. Bangarappa, reported in AIR 2001 SC 222 cited by the Counsel .for vigilance the Apex Court held at paragraph 23 of the judgment as "No doubt the prosecution has to establish that the pecuniary assets acquired by the public servant are disproportionately larger than his known sources of income and then it is for the public servant.to account for such excess. The offence becomes complete on the failure on the public servant to account or explain such excess." It was further held : "The opportunity which is to be afforded to the delinquent officer under sec. 5(1)(e) of the Act, [corresponding to sec. 13(1 )(1) of the 1988 Act] of satisfactorily explaining about his assets and resources is before the Court when the trial commences and not at an earlier stage." 9. Thus considering the principles and guide lines as laid down by the Apex Court in the above cited case it is clear that probable defence of the accused and the opportunity to be afforded to him to explain about the disproportionate assets as prima facie shown in the complaint or charge-sheet can be exercised by the accused in the trial only. The High Court cannot inter into a discussion of the facts shown in the charge-sheet or the complaint with a view to finding out whether they are sufficient to hold a conviction or not. The High Court can interfere only when the prima facie material brought in the complaint or charge-sheet do not make out an offence. If the materials in complaint or charge-sheet prima facie disclose commission of the offence the accused has to be put on trial. The High Court can interfere only when the prima facie material brought in the complaint or charge-sheet do not make out an offence. If the materials in complaint or charge-sheet prima facie disclose commission of the offence the accused has to be put on trial. In the instant case the prima facie material as brought in the FIR, charge-sheet and the case diary are sufficient to indicate assets disproportionate to the known sources of the income of the petitioner hence an offence is made out, therefore, the accused has to be put on trial. At this stage there cannot be a meticulous discussion of the material brought on record and the defence, of the petitioner in order to find out whether it will suffice a conviction or not. On the basis of the materials as brought in the first information report charge-sheet and the case diary which were discussed by the learned trial judge in the impugned order, I find that prima facie offence as alleged is made out. 10. Under the circumstances the impugned order does not need any interference. Accordingly the petition is dismissed.