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2005 DIGILAW 847 (AP)

G. v. Gopala Rao VS State Of A. P.

2005-09-09

G.YETHIRAJULU

body2005
( 1 ) THIS criminal appeal is directed against the judgment of the special Judge for SPE and ACB Cases, vijayawada, dated 27-2-1998 in C. C. No. 43 of 1992 convicting the appellant for the offence under Section 13 (1) (e) read with section 13 (2) of the Prevention of Corruption act, 1988 (for short the 1988 Act ), and sentencing him to undergo rigorous imprisonment for one and half years and to pay a fine of Rs. 3,50,000/-, in default to suffer rigorous imprisonment for 10 months. ( 2 ) THE appellant was charged for the offence under Section 5 (1) (e) read with section 5 (2) of the Prevention of Corruption act, 1947 (for short the 1947 Act ) for acquiring assets disproportionate to his known sources of income while working as an executive Engineer in the Irrigation department at Kurnool Division. The appellant pleaded not guilty of the offence and claimed for trial. The prosecution in order to prove the guilt of the appellant examined P. Ws. 1 to 20 and marked Exs. P-1 to P-87. The appellant in support of his defence examined D. Ws. 1 and 18 and marked Exs. D-1 to D-28. ( 3 ) THE learned Special Judge after considering the oral and documentary evidence adduced by both parties found the appellant guilty of the said offence and accordingly convicted and sentenced him for the said offence as indicated above. ( 4 ) SRI T. Bali Reddy, the learned senior Counsel representing the appellant represented that though the check was held while the 1947 Act was in force, the learned special Judge convicted the appellant for the offence under Section 13 (1) (e) read with Section 13 (2) of the 1988 Act, therefore, the conviction of the appellant is illegal and it is liable to be set aside. ( 5 ) THE point for consideration is whether the conviction and the sentence imposed by the trial Court are illegal and whether they are liable to be set aside ? ( 6 ) THE A. C. B. officials conducted a check on 8-11-1987 on the properties of the appellant and on verification they found that he was in possession of assets of a value of Rs. 10,94,686. ( 6 ) THE A. C. B. officials conducted a check on 8-11-1987 on the properties of the appellant and on verification they found that he was in possession of assets of a value of Rs. 10,94,686. 25 paise in excess of the income of the appellant from all known sources and on finding the assets of the appellant disproportionate to his known source of income, laid a charge-sheet for the offence under Section 5 (1) (e) read with section 5 (2) of the 1947 Act. The trial court took cognizance of the offence under section 5 (1) (e) read with Section 5 (2) of the 1947 Act. The charge was also framed against the appellant for the offence under section 5 (1) (e) read with Section 5 (2) of the 1947 Act. The trial was also conducted under the old Act. But, the learned Special judge while finding the appellate guilty of the charges, convicted him for the offence under Section 13 (1) (e) read with section 13 (2) of the 1988 Act and imposed the sentence of imprisonment and fine on the appellant. ( 7 ) THE learned Senior Counsel for the appellant placed strong reliance on the following judgments in support of his contention that the conviction of the appellant is illegal: ( 8 ) IN Jagan M. Seshadri v. State of tamil Nadu, AIR 2002 SC 2399 , a Full bench of the Hon ble Supreme Court while considering the effect of repeal of the 1947 act held as follows : "when the offence was committed it was the 1947 Act, which was in operation. At the time when FIR was lodged, it was also the 1947 Act, which was in operation. Reliance on Section 30 (2) of the 1988 Act to hold that offence for which the appellant should have been charged was one which fell under Section 13 of the 1988 act is wholly misplaced. The framing of charge by the trial Court under Section 5 (1) (e) read with section 5 (2) of the 1947 Act for offence allegedly committed during check period 1977-1984 is not invalid. The appellant shall not be deemed to have been charged for offences under Section 13 (1) (e) read with section 13 (2) of the 1988 Act. The framing of charge by the trial Court under Section 5 (1) (e) read with section 5 (2) of the 1947 Act for offence allegedly committed during check period 1977-1984 is not invalid. The appellant shall not be deemed to have been charged for offences under Section 13 (1) (e) read with section 13 (2) of the 1988 Act. " ( 9 ) IN the case covered by the above decision, there was an allegation that during the check period from 1977-1984, the appellant, who, at the relevant time, serving as a Superintendent of Police, had acquired assets disproportionate to his known sources of income. First Information Report was lodged on 18-6-1986 by the Superintendent of Police, Western Range, Vigilance and anti-Corruption, Madras, alleging commission of offence under Section 5 (1) (d) and (e) read with Section 5 (2) of the 1947 Act. The appellant was sent up for trial after obtaining sanction for prosecution. Charges were framed and evidence was led. The learned Special Judge, on appreciation of the evidence acquitted the appellant of all the charges through the judgment dated 9-7-1990. Aggrieved by the order of acquittal, the State preferred an appeal before the High Court of Madras. By an order dated 24-12-1998, the High Court allowed the appeal by reversing the order of acquittal of the appellant and convicted the accused for the offence under Section 13 (1) (e) read with Section 13 (2) of the 1988 Act and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs. 5,000/- and in default, to undergo further simple imprisonment for a period of three months. The appellant being aggrieved by the judgment of the High Court of madras, took special leave before the supreme Court of India. The Hon ble supreme Court observed as follows : "we have heard learned Counsel for the parties and carefully examined the judgment of the High Court. In Paragraph 7 of the judgment, the High Court has found "flaw" in the framing of charge by the learned special Judge under Section 5 (1) (e) of the prevention of Corruption Act, 1947 (hereinafter 1947 Act ). According to the High court, the 1947 Act had been repealed by the Prevention of Corruption Act, 1988 (hereinafter 1988 Act) which came into force with effect from 9-9-1998. According to the High court, the 1947 Act had been repealed by the Prevention of Corruption Act, 1988 (hereinafter 1988 Act) which came into force with effect from 9-9-1998. According to the high Court, since charge was framed after 9-9-1988, though, with regard to offence allegedly committed by the appellant during the check period 1977-1984, the appellant should have been charged under Section 13 (1) (e) read with Section 13 (2) of the 1988 act and not under Section 5 (1) (e) of the 1947 Act. Relying on Section 13 of the 1988 Act, the High Court opined that the appellant shall not be deemed to have been charged for offences under Section 13 (1) (e) read with Section 13 (2) of the 1988 Act and the framing of charge by the trial Court under section 5 (1) (e) read with Section 5 (2) of the 1947 Act, was invalid. A perusal of the judgment of the High court reveals that High Court has failed to deal with various reasons given by the trial Court in support of an order of acquittal. It is apparent from the terms and tender of the impugned judgment that High Court was influenced by the phraseology of section 13 (1) (e) of the 1988 Act, which, except for the explanation as added to that section, is in pari materia with Section 5 (1) (e) of the 1947 Act. High Court has pressed into aid the explanation to Section 13 (1) (e) of the Act to hold the appellant guilty. For what follows the approach of the High court is erroneous. " ( 10 ) THE Supreme Court further observed that there is no dispute that when the offence was committed it was the 1947 act which was in operation. It is also not in dispute that at the time when FIR was lodged, it was also the 1947 Act, which was in operation. Reliance on Section 30 (2) of the 1988 Act to hold that offence for which the appellant should have been charged was one which fell under Section 13 of the 1988 Act is wholly misplaced. The Supreme Court accordingly set aside the judgment of the High Court and restored the order of trial Court. Reliance on Section 30 (2) of the 1988 Act to hold that offence for which the appellant should have been charged was one which fell under Section 13 of the 1988 Act is wholly misplaced. The Supreme Court accordingly set aside the judgment of the High Court and restored the order of trial Court. ( 11 ) IN the case covered by the above decision, the Supreme Court after satisfying about the acquittal of the appellant on merits did not pass any order for remand. ( 12 ) IN Rajendra Jonko v. Superintendent of Police, CBI, Mumbai, 2004 Crl. LJ 3703 (Bom.), the Bombay High Court while relying on the judgment of the Supreme court in Jagan M. Seshadri s case (supra) set aside the conviction of the accused on the ground that the conviction of the accused for the offence under Section 13 (1) (e) read with Section 13 (2) of the 1988 Act allegedly committed by the accused when old Act of 1947 was in force is illegal. ( 13 ) IN the case covered by the above decision, the offence of amassing the assets disproportionate to his known source of income of the accused was to the extent of Rs. 4,61,000/- during the check period from 15-11-1979 till 12-11-1987. Therefore, the 1947 Act was applicable. A charge under Section 5 (1) (e) read with section 5 (2) of the 1947 Act was framed against the accused. However, the Special judge tried the case for the offence under section 13 (1) (e) read with Section 13 (2) of the 1988 Act. The accused contended before the High Court that while framing charges under the old Act, conducting trial under the provisions of the New Act, results in vitiating the entire trial. The judgment further reveals that the accused filed an application for discharge by contending that he cannot be charged for the offence under Section 5 (1) (e) read with Section 5 (2) of the 1947 Act and he should be charged for the offence under Section 13 (1) (e) read with Section 13 (2) of the 1988 Act. The Special Court rejected his contention. Consequently the charge framed under the Old Act remained in force. The High court of Bombay observed that when the charges were framed under the Old Act, trying the accused under the New Act was totally wrong. The Special Court rejected his contention. Consequently the charge framed under the Old Act remained in force. The High court of Bombay observed that when the charges were framed under the Old Act, trying the accused under the New Act was totally wrong. The High Court further observed that it has substantially and materially affected the right of the accused and, on the basis of the judgment of the Supreme Court the trial has to be vitiated. It is also contended before the said court that as per the judgment of the supreme Court in M. W. Mohiuddin v. State of Maharashtra, (1995) 3 SCC 567 , as section 13 (1) (e) of the New Act is similar to Section 5 (1) (e) of the old Act, no prejudice has been caused to the accused since the gravamen of the charges under the relevant provisions of both the Acts in respect of these offences are the same in substance and at any rate the appellant cannot raise such a contention for the first time in this Court when no prejudice has been caused to him. But, the High Court observed that the said judgment is of no use to the prosecution in view of the Full bench judgment of the Supreme Court in jagan M. Seshadri s case (supra ). The high Court further observed that while delivering the judgment in very first para, noted that the accused was facing the trial for the offence under Section 13 (1) (e) read with Section 5 (2) of the 1988 Act. Therefore, there was no question of accused raising any objection and there was no question of framing charge under the New act. The charge under the Old Act was already framed, and then in that case, it was wholly illegal and improper on the part of the trial Court to conduct the trial as one under Section 13 (1) (e) read with section 13 (2) of the New Act of 1988. The High Court further observed that the accused has undergone full trial. Therefore, now there is no question of remanding the matter to the trial Court again and when the trial itself stands vitiated and no fault can be found with the accused in that regard, the prayer of the prosecution is required to be rejected. The High Court further observed that the accused has undergone full trial. Therefore, now there is no question of remanding the matter to the trial Court again and when the trial itself stands vitiated and no fault can be found with the accused in that regard, the prayer of the prosecution is required to be rejected. ( 14 ) IN the present case, the learned public Prosecutor submits that as the charges were framed and the trial was conducted under the Old Act, it is essential to come to a logical end and as the illegality was only after the conclusion of the trial by way of convicting the appellant under the New Act, therefore, this is a fit case for remand with a direction to consider the evidence and give a finding under the provisions of the old Act. ( 15 ) THE learned Senior Counsel representing the appellant submits that in the light of the judgment of the Supreme court in Jagan M. Seshadri s case (supra) and the judgment of the High Court of bombay in Rajendra Jonko s case (supra), there shall not be any remand of the matter and the appeal has to be disposed of by setting aside the judgment of the trial court holding that the conviction and the sentence imposed by the trial Court are illegal. ( 16 ) IN the judgment of Jagan M. Seshadri s case (supra), the charges were framed against the accused under the old Act, the trial was conducted and the special Court acquitted the accused for the offence under Section 5 (1) (e) read with section 5 (2) of the 1947 Act (Old Act ). The High Court of Madras reversed the judgment of the Special Judge on the ground that the trial ought to have been conducted for the offence under Section 13 (1) (e) read with Section 13 (2) of the 1988 Act and the judgment ought to have been rendering under the provisions of New Act. The supreme Court reversed the judgment of the High Court by confirming the judgment of the Special Judge by holding that as the check period was while the old Act was in force, the trial was rightly conducted by the Special Judge under the provisions of the Old Act. The supreme Court reversed the judgment of the High Court by confirming the judgment of the Special Judge by holding that as the check period was while the old Act was in force, the trial was rightly conducted by the Special Judge under the provisions of the Old Act. The Supreme Court also considered the merits of the case on the basis of the evidence available on record and confirmed the acquittal recorded by the special Court. Therefore, the question of remanding the matter for fresh disposal did not arise in that case. ( 17 ) IN Rajendra Jonko s case (supra), though the charges were framed under the provisions of the 1947 Act, the trial was conducted under Section 13 (1) (e) read with section 13 (2) of the 1988 Act. Therefore, the trial was vitiated and accordingly, the conviction and sentence imposed by the special Judge were set aside. ( 18 ) IN the present case, framing of charges and conducting of trial were under the provisions of Old Act and the learned special Judge rendered the judgment by convicting the appellant under Section 13 (1) (e) read with Section 13 (2) of the new Act by gaining an impression that section 13 (1) (e) of the New Act is similar to Section 5 (1) (e) of the Old Act. Since the learned Special Judge invoked a wrong provision in convicting the appellant, it cannot be said that the entire trial is liable to be vitiated. The conviction of the appellant can only be held illegal. When once the conviction of the appellant is set aside on the ground of illegality in invoking the provisions of the New Act, the matter has to be necessarily remanded to the Special court for considering the case on merits whether the prosecution proved the guilt of the appellant beyond all reasonable doubt under Section 5 (1) (e) of the 1947 Act and to pass appropriate orders. Since this case is standing on a different footing than the cases covered by the above decisions, I am inclined to set aside the conviction and sentence imposed on the appellant and remand the matter to the trial Court for fresh disposal according to law. Since this case is standing on a different footing than the cases covered by the above decisions, I am inclined to set aside the conviction and sentence imposed on the appellant and remand the matter to the trial Court for fresh disposal according to law. ( 19 ) IN the result, the criminal appeal is allowed and the conviction of the appellant for the offence under Section 13 (1) (e) read with Section 13 (2) of the 1988 Act and the sentence of imprisonment and fine imposed on the appellant are set aside on the sole ground that the trial Court committed an illegality in convicting the appellant under section 13 (1) (e) read with Section 13 (2) of the 1988 Act after framing the charges for the offence under Section 5 (1) (e) read with section 5 (2) of the 1947 Act and conducting the trial. The matter is remitted back to the trial Court for fresh disposal on the basis of the evidence available on record and to pass appropriate orders by invoking Section 5 (1) (e ). read with Section 5 (2) of the prevention of Corruption Act, 1947. The fine amount, if any, paid, shall be returned to the appellant.