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2010 DIGILAW 891 (JHR)

Bishwanath Singh v. State of Jharkhand

2010-09-14

PRASHANT KUMAR

body2010
JUDGMENT Prashant Kumar, J. — This appeal is directed against the judgment of conviction and order of sentence dated 27.5.2002 and 28.5.2002 respectively passed by Special Judge, C.B.I. & Vigilance-cum-1st Additional Sessions Judge, Dhanbad in Special Case No.4 of 1993 corresponding to Patna Nigrani P .S. Case No.4 of 1993, whereby and whereunder appellant was convicted under Section 13(1)(e) of the Prevention of Corruption Act, 1988 and sentenced to undergo rigorous imprisonment for two years and directed to pay fine of Rs. 1,000/-. In default of payment of fine, he was directed to undergo rigorous imprisonment for two months. 2. It appears that P.W.-1 filed a written report before the Officer-in-charge, Nigrani Police Station alleging therein that during the check period 1973-1983 appellant was posted at Digwadih, Dhanbad as Meter Reader under the Bihar State Electricity Board and during that period he by misusing his position had accumulated and possessed properties disproportionate to his known source of income. It is further alleged that during the check period i.e. 1973-1 S83, appellant purchased 3.5 khatas of land at Dhanbad, in the name of his wife Smt. Sonamati Devi, on the payment of Rs. 7,000/-, without obtaining permission from the competent authority. It is further alleged that thereafter he constructed a double storied building on the said land during the check period by spending an amount of Rs. 1,31,813/-. It is stated that during the check period, appellant earned Rs. 71,149.94 from his salary and bonus. After deducting his expenses, his estimated savings comes to Rs. 23,716.49. Thus. deducting the aforesaid savings from the total value of the land and building i.e. Rs. 1,38,813/-, the disproportionate income comes to Rs. 1,15,097/-, for which the appellant has not furnished any explanation. Thus, appellant has committed criminal misconduct under Section 5(1)(e) of the Prevention of Corruption Act, 1947 (hereinafter referred as 'Act of 1947') read with Section 13(1)(e) of Prevention of Corruption Act, 1988 (hereinafter referred as 'Act of 1988'). 3. On the basis of aforesaid written report, Nigrani Police Station, Patna instituted a case bearing Nigrani P.S. Case No. 4 of 1993 and took up investigation. After investigation, charge-sheet submitted in the Court of Special Judge, who, accordingly, took cognizance against the appellant under Section 5(2) read with Section 5(1)(e) of the Act of 1947 as amended by Section 13(2) read with Section 13(1)(e) of the Act of 1988. After investigation, charge-sheet submitted in the Court of Special Judge, who, accordingly, took cognizance against the appellant under Section 5(2) read with Section 5(1)(e) of the Act of 1947 as amended by Section 13(2) read with Section 13(1)(e) of the Act of 1988. It appears that learned Special Judge vide order dated 12.1.1998 framed charge against the appellant under Section 13(1)(e) of the Act of 1988 and explained the same to the appellant, to which he pleaded not guilty and claimed to be tried. Thereafter, prosecution examined altogether nine witnesses in support of its case. Prosecution also brought on record Ext.-1-written report, Ext.-2-report• of expert who made valuation of the building in question, Ext.-3-the forwarding report of the expert, Ext.-4-the signature of sanctioning authority and Ext.-5-the sanction order. 4. After close of the case of prosecution, the statement of appellant recorded under Section 313 Cr.P.C., in which his defence is that he was working in the Bihar State Electricity Board from 1961, in spite of that prosecuting agencies had not added his savings from the salaries etc. from 1961-1972 in his income from known source of income. He further took defence that in spite of the information given to the prosecuting agencies his income from agriculture has not been taken into account. The appellant had further taken defence that if his savings from salaries etc. w.e.f. 1961-1983 and agriculture income were taken into account, the construction of the said building on the land in question is not disproportionate to his known source of income: Learned Special Judge, after considering the evidence on record, concluded that appellant possessed properties disproportionate to his known source of income, therefore, committed criminal misconduct punishable under Section 13(2) of the Act of 1988. Accordingly, learned Special Judge convicted and sentenced the appellant. Against the above judgment and order present appeal filed. 5. While assailing the impugned judgment of learned court below, Sri Shekhar Prasad Sinha, learned counsel for the appellant submits that the prosecuting agencies had failed to take into account the income and savings of the appellant from salary w.e.f. 1961-1972, though, while deposing in court, the prosecuting agencies admits that appellant was working j,j the Bihar State Electricity Board w.e.f. 1961. It is further submitted that the prosecuting agencies had not considered the income of the appellant from agriculture in spite of the fact that the details of income from agriculture had been furnished to the Investigating Officer, who on verification found that the said details are correct. It is submitted that the prosecuting agencies had not taken into account the agriculture income of appellant as income from the known source of income because appellant had not intimated the authority regarding the same as per explanation attached with Section 13(1)(e) of the Act of 1988. It is submitted that the case relates to check period 1973-1983, thus, at that time Section 5(e) of the Act of 1947 was applicable. It is submitted that at that time it is not incumbent upon the appellant to intimate the authority regarding his income from any lawful source because in Section 5(1)(e) of the Act of 1947, no explanation attached like Section 13(1 )(e) of the Act of 1988. It is submitted that there is no law, rules or orders produced by the prosecuting agencies to show that the appellant required to intimate Bihar State Electricity Board regarding his income from the agriculture. Thus, even as per the explanation attached with Section 13(1)(e) of the Act of 1988 the income of appellant from agriculture cannot be excluded because he had not given intimation to his employer. It is submitted that the learned trial court had wrongly framed charge against the appellant under Section 13(1)(e) read with Section 13(2) of the Act of 1988 because the alleged offence was committed during the check period of 1973-1983 and at that time Act of 1947 was enforced. Accordingly, it is submitted that the court below has committed serious irregularity in presuming that the income of the appellant was disproportionate to his known source of income. 6. On the other hand, Sri. A.K. Kashyap, learned Senior Counsel, appearing for the Vigilance Department submitted that after coming into force of the Act of 1988, it is incumbent upon the appellant to disclose his income from agriculture to his appointing authority and then only he can assert that the said income was from known source of his income. It is submitted that the word known source of income means sources known to the prosecution and not the sources known to the accused. It is submitted that the word known source of income means sources known to the prosecution and not the sources known to the accused. If the prosecution had no knowledge about the income of the appellant from any other source other than the income from the salary and other pecuniary benefit received from his employer, it is for the appellant to disclose the same. It is submitted that as per Section 13(2) of the Act of 1988, learned trial court had rightly framed charge against the appellant under Section 13(1)(e) of the Act of 1988. It is submitted that since the appellant had not intimated his employer regarding his income from agriculture during the check period, therefore, as per explanation attached with Section 13(1)(e) of the Act of 1988 same was rightly not taken into account by the prosecution, thus, he has been rightly convicted by the learned court below. 7. Having heard the submission, I have gone through the record of the case. Before taking into account the rival contention of the parties, I think it appropriate to consider the legal position Sections 13(1)(e) and 13(2) of the Act of 1988 reads as under:- "13. Criminal misconduct by a public servant.-(1) A public servant is said to commit the offence of. criminal misconduct,- (a) ..................... (b) ..................... (c) ..................... (d)................... .. (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. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine." 8. It is worth mentioning that in Section 5(1)(e) of the Act of 1947, there is no explanation attached defining the expression known source of income. It is worth mentioning that in Section 5(1)(e) of the Act of 1947, there is no explanation attached defining the expression known source of income. Therefore, under the old law, it is not imperative upon the public servant to intimate his employer or any other authority regarding his income from any other lawful source. Under the ,old law it is enough for the public servant to inform the Investigating Officer about the acquisition of income from other legal sources and it is for the Investigating Officer to investigate the claim of public servant in that regard. But under the new Act i.e, Act of 1988 in view of the explanation, if the public servant has not intimated his income from any other lawful source to his employer or authority, then the same will not be treated as his income from the lawful source. This is the difference between aforesaid two laws. 9. In the instant case, it is alleged that the appellant has committed an of fence during the check period of 19731983'. At that time Act of 1947 was in operation. Under the said circumstance, the question arose whether the appellant would have been prosecuted under the old Act or under the new Act? To answer the aforesaid question, I do no better than to quote paragraph nos. 6 & 7 of the judgment of Hon'ble the Supreme Court in Jagan M. Seshadri VS. State of T.N. reported in (2002) 9 Supreme Court Cases 639:- "6. 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. 7. A bare reading of Section 30(2) of the 1988 Act shows that any act done or any action taken or purported to have been done or taken under or in pursuance of the repealed Act, shall, insofar as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provisions of the Act. It does not substitute Section 13 in place of Section 5 of the 1947 Act. Section 30(2) is applicable "without prejudice to the application of Section 6 of the General Clauses Act, 1897". In our opinion, the application of Section 13 of the 1988 Act to the fact situation of the present case, would offend Section 6 of the General Clauses Act, which, inter alia provides that repeal shall not (i) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder, or (ii) affect any investigation, legal proceedings or remedy in respect of any such rights, privilege, obligation, penalty, forfeiture or punishment. Section 13, both in the matter of punishment as also by the addition of the Explanation to Section 13(1)(e) is materially different from Section 5 of the 1947 Act, The presumption permission to be raised under the Explanation to Section 13(1)(e) was not available to be raised under Section 5(1)(e) of the 1947 Act. This difference can have a material bearing en the case." 10. As noticed above, in the present case check period was 1973-1983. Thus, in my view as per the law laid down by their Lordships of Supreme Court in the above judgment read with Section 6 of the General Clauses Act, even after repeal of the Act of 1947, it is imperative upon the prosecuting agencies to prosecute the appellant as per the law existing at the relevant time. Consequently if any right accrued to the appellant same cannot be taken away by the repealing Act. Accordingly, if appellant produced materials before the Investigating Officer showing that he had income from the agriculture source, same cannot be ignored by the prosecution on the plea of new provision contained in the Act of 1988. 11. It is worth mentioning that the prosecution alleged that during the check period 1973-1983, appellant possessed properties to the tune of Rs. 1,15,097/- which was disproportionate to the income of appellant. P.W.-1, informant of the present case, admitted at paragraph no. 3 that the appellant was appointed in the Bihar State Electricity Board prior to check period. He had not denied that the date of appointment of appellant was 23.1.1961. He also did not explain as to why check period was not fixed from 1961-1983. He also did not explain as to why the check period fixed from 1973-1983. 3 that the appellant was appointed in the Bihar State Electricity Board prior to check period. He had not denied that the date of appointment of appellant was 23.1.1961. He also did not explain as to why check period was not fixed from 1961-1983. He also did not explain as to why the check period fixed from 1973-1983. Admittedly, the savings of appellant from salary from 1961-1972 has not been taken into account by the prosecution while coming to the conclusion that the properties possessed by the appellant, subject matter of the present case, was disproportionate to his known source of income. It further appears from the deposition of P.W. 7, one of the Investigating Officer, that during the investigation he recorded defence statement of appellant he further deposed that in the said statement, appellant stated before him that apart from income from the salary he also earned from agriculture. P.W. 7 then deposed that appellant produced certificate issued by competent authority with regard to his income from agriculture. P.W.-7 also stated that he verified about the income certificates produced by the appellant and found that the same are genuine and issued by competent authority. However, he stated that as per Section 13 of the Act of 1988 a public servant is required to intimate his income from other legal sources to Ms department and since the appellant had not intimated his employer regarding his income from agriculture,- the same was not calculated as his income from known source of income. 12. Thus, from the statement of P.W.7, it is clear that the appellant gave details of his income from the lawful sources and Investigating Officer on investigation and/or verification had found the same correct, but the said explanation given by the appellant has not been considered by the prosecuting agencies only on the ground that appellant had not intimated the same to his employer. Learned court below also appears to be influenced by aforesaid contention of prosecution and had given a finding at paragraph no. 18 that — "a Government servant is expected to file information with regard to his movable and immovable properties to the department within a reasonable period." 13. Learned court below also appears to be influenced by aforesaid contention of prosecution and had given a finding at paragraph no. 18 that — "a Government servant is expected to file information with regard to his movable and immovable properties to the department within a reasonable period." 13. As noticed above, under Section 5(1)(e) of the Act of 1947, there is no such explanation defining the known source of income and also making it mandatory for the public servant to intimate his income from any other lawful source to the authority concerned. Thus, in my view, appellant cannot be held guilty for criminal misconduct under Section 5(1)(e) of the Act of 1947 read with Section 13(1)(e) of the Act of 1988 only because he had not intimated his income from agriculture to the concerned authority. I am of the firm view that the prosecuting agencies as well as the learned court below were bound to take into account the income of appellant from agriculture before prosecuting and/or convicting him for a criminal misconduct for possessing properties disproportionate to his known source of income. 14. In the instant case, the appellant stated in his statement under Section 313 Cr.P.C. that he was holding more than 49 acres of ancestral land from which he was earning Rs. 32,200/- annually. He produced income certificate, issued by competent authority, to the Investigating Officer (P.W. 7). Investigating Officer investigated and verified about the genuineness of the said certificate and concluded that claim of the appellant regarding possession of said land and income from it was correct. It is needless to say that the income of an individual and/or public servant from agriculture is an income from lawful source. Under the said circumstance when at the relevant time the penal law does not require that a public servant should inform his income from agriculture to his employer, then in my view on the basis of provisions contained in subsequent law, he cannot be prosecuted and/ or convicted because he had not intimated so. Appellant stated that he was earning Rs. 32,200/- annually from agriculture and he gave certificate to that effect to the Investigating agencies, which was not brought on record by the prosecution. Appellant stated that he was earning Rs. 32,200/- annually from agriculture and he gave certificate to that effect to the Investigating agencies, which was not brought on record by the prosecution. Thus, I find that during the check period income of the appellant from lawful source was much much higher than the income calculated by the prosecuting agencies and accepted by the learned trial court. In my view, if the earning of the appellant from agriculture is taken into account, the cost of the alleged land purchased in the name of appellant's wife and value of the building erected upon it was not disproportionate to the income of appellant from his known source of income. 15. In view of the discussion made above, I find that the prosecution miser-ably failed to prove the charge levelled against the appellant that at the relevant time appellant was possessing properties disproportionate to his known source of income. Thus, I find serious illegality and irregularities in the impugned judgment and order, thus, same cannot be sustained in this appeal. 16. In the result, this appeal is allowed. The impugned judgment of conviction and order of sentence is set aside. The appellant is acquitted from the charge levelled against him. He is also discharged from the liabilities of the bail bond furnished by him.