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2012 DIGILAW 1632 (JHR)

Santoshi Devi v. State of Jharkhand through CBI

2012-11-09

R.R.PRASAD

body2012
ORDER By the Court.- One Rajiv Sharma had filed a complaint, vide Complaint Case No. 01 of 2009 on 20.1.2009 before the Special Judge, vigilance, Ranchi against four accused persons including Bhanu Pratap Sahi, who was Minister from 7.2.2007 to 12.1.2009 alleging therein that all the accused persons have amassed property disproportionate to their known source of income. 2. The Special Judge on receiving the complaint, sent it before the Vigilance Police Station for its institution and investigation. Accordingly, Vigilance P.S. Case No. 9 of 2009 was registered. Meanwhile, this Court passed an order in W.P.(PIL) No.4700 of 2008 on 4.8.2008 directing the C.B.I to take further investigation in the matter. The C.B.I having taken over the investigation, registered the case as R.C.No. 5(A) of 2010-AHD-R under Sections 409, 420, 423, 424, 465, 120(B) of the Indian Penal Code and also under Sections 7, 10, 11 and 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act. 1988. 3. The C.B.I having completed the investigation submitted charge-sheet on 22.12.2011 against the named accused persons as well as against the petitioner No.1, who happens to be cousin sister of the accused Bhanu Pratap Sahi and also against the petitioner No.2, husband of petitioner No. 1 on the allegation that Bhanu Pratap Sahi having connived with the petitioners did purchase 5.42 acres of land at village Hotwasi, Hatia worth Rs.14,55,000/ - by investing his illegal money in the name of petitioner No. 1 and by creating false record, the petitioners . tried to justify the said investment and thereby they actively abetted the principal accused Bhanu Pratap Sahi in acquiring assets in their names from his illegal money. 4. On submission of the chargesheet, cognizance of the offences has been taken against the petitioners under Section 109 of the Indian Penal Code and also under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, vide order dated 3.1.2012 which is under challenge. 5. 4. On submission of the chargesheet, cognizance of the offences has been taken against the petitioners under Section 109 of the Indian Penal Code and also under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, vide order dated 3.1.2012 which is under challenge. 5. Learned senior counsel appearing for the petitioners submitted that main allegation of acquiring property disproportionate to the income is against one Bhanu Pratap Sahi, ex-Minister but the petitioners have been made accused on the premise that a piece of land has been purchased by the petitioner No. 1 from the ill-gotten money received by Bhanu Pratap Sahi, who happens to be cousin brother of petitioner No. 1 but there has been no evidence whatsoever that the petitioners in any way abetted Bhanu Pratap Sahi in amassing property disproportionate to his income. The C.B.I has come forward with the case against the petitioners that the land in question has been purchased in the name of petitioner No. 1 from the tainted money acquired by Bhanu Pratap Sahi but there has been absolutely no material or evidence to establish that fact. 6. In this regard it was further submitted that the land in question had been purchased by the petitioner No.1 from her own source of income who has got landed property of 50-60 bigha in village Kadhwan. District-Garhwa. The landed property came to the share of the mother of this petitioner when partition took place in between the family of Bhanu Pratap Sahi and her mother who was having bitter relation with Bhanu Pratap Sahi. Her mother was getting the agricultural land cultivated through bataidar. Her mother had sold some land in the year 2000 and also in the year 2005, the amount of which was given to the petitioner No.1. That apart, members of the in-laws' family of petitioner No. 1 are well off and even her husband, petitioner No. 2 is employed. They all have contributed in purchasing the land in question by the petitioner No.1. 7. That apart, members of the in-laws' family of petitioner No. 1 are well off and even her husband, petitioner No. 2 is employed. They all have contributed in purchasing the land in question by the petitioner No.1. 7. Thus, it was submitted that petitioner No. 1 had acquired sufficient money to purchase the land but the C.B.I without there being any cogent material has come with the case that the land had been purchased in the name of petitioner No. 1 by ill-gotten money acquired by Bhanu Pratap Sahi which allegation appears to be quite improbable in view of the fact that the relationship in between the mother of petitioner No. 1 and family of Bhanu Pratap Sahi was quite bitter and hence, it appears to be quite strange as to why Bhanu Pratap Sahi by investing money would purchase the land in the name of the petitioner No. 1. 8. Further submission which was advanced on behalf of the petitioners is that one would be liable for an offence as an abettor in terms of Section 109 of the Indian Penal Code when act abetted is committed in consequence of the abetment; meaning thereby .that abetment has to be preceded the commission of actual offence i.e. to say that offence is committed in furtherance of abetment but no such case is there of the C.B.I. that the principal accused committed offence under Section 13(1)(e) of the Prevention of Corruption Act in consequence of the abetment made by the petitioners. Thus, there appears to be no reasonable ground for proceeding with the matter so far these petitioners are concerned and hence, entire proceeding is fit to be quashed. 9. In this regard it was also submitted that C.B.I has virtually come with the case that the alleged transaction is benami as according to the case of the C.B.I. it is the Bhanu Pratap Sahi who is the real owner whereas petitioner No. 1 is ostensible owner (benamidar). When such case is made out, burden lies upon the party who alleges such transaction as benami to prove the said fact but the C.B.I. has not come forward with any material to establish that the alleged transaction is benami. When such evidence is not there, it would be miscarriage of justice to allow the petitioners to face rigour of the trial. 10. When such evidence is not there, it would be miscarriage of justice to allow the petitioners to face rigour of the trial. 10. In this respect learned counsel has referred to a decision rendered in a case of Krishnand v. State of Madhya Pradesh, (1977) SCC (Cri) 190. 11. As against this, learned counsel appearing for the C.B.I. submitted that it is true that the petitioners were not named accused in the F.I.R but during investigation, it got transpired that the lands which were purchased in the name of Santoshi Devi (petitioner No.1) cousin sister of Bhanu Pratap Sahi, ex-Minister, had been negotiated by Sh. U.S Malviya, the then OSD to Shri Sahi and that neither Santoshi Devi nor her husband Anirudh Pratap Senger (petitioner No.2) who is a lowly placed employee of HINDALCO at Muri was having financial capability to purchase the said property even on the registered value, though it was purchased on much more higher price than the registered value. During investigation, they had claimed that a loan of Rs.2 lacs had been taken from one Pankaj Kumar, a colleague of Anirudh Pratap Senger but during investigation. Pankaj Kumar denied that he had given any loan to Anirudh Pratap Senger, who had created fake loan account whereby entry was made in a pocket diary showing return of the loan amount to Pankaj Kumar. During investigation, they also claimed to have sold jewellary worth Rs.4.5 lacs to a Jeweler at Rewa. Madhya Pradesh but it transpired that instead of selling jewellary, petitioner No. 1 had, in fact, purchased jewellary worth Rs.4.5 lacs. Thus, all these facts collected during investigation go to establish the charge of abetting main accused to commit offence as has been alleged. 12. It was further submitted that if a non-public servant, who has indulged himself in a conspiracy with public servant to commit any offence, he can be tried along with public servant for an offence even under Section 13(1)(e) of the Prevention of Corruption Act. 13. In this regard it was further submitted that submissions advanced on behalf of the petitioners that abetment has to precede commission of actual offence is not correct as Explanation 2 to Section 107 of the Indian Penal Code does stipulate that offence can be abetted either prior to its commission or at the time of commission of that act. 14. In this regard it was further submitted that submissions advanced on behalf of the petitioners that abetment has to precede commission of actual offence is not correct as Explanation 2 to Section 107 of the Indian Penal Code does stipulate that offence can be abetted either prior to its commission or at the time of commission of that act. 14. So far present case is concerned, evidence has been collected. that actual payment at the rate of Rs.10 lacs per acre was paid in the house of Santoshi Devi (petitioner No.1) in presence of OSD to the then Health Minister and the broker whereas petitioners have had no financial capability to purchase that land but the petitioners in order to justify their claims that they had purchased the land from their own sources took certain pleas which were found to be false and thereby investigating agency found culpability on the part of these petitioners and submitted charge-sheet, upon which cognizance of the offence has been taken which, in the facts and circumstances stated above, never warrants to be quashed. 15. Thus, having heard learned counsel appearing for the parties, it does appear that on one hand, claim which has been put forth on behalf of the petitioners is that they had sufficient means to purchase land in question whereas according to the case of the prosecution, petitioners were not having financial capability to purchase the land. This issue never warrants to be decided at this stage, rather it requires to be decided during trial. 16. So far the submissions advanced on behalf of the petitioners that non-public servant cannot be tried for commission of offence under Section 13(1)(e) of the Prevention of Corruption Act with aid of Section 109 of the Indian Penal Code is concerned, it is devoid of any merit, in view of the decision rendered in a case of P. Nallammal v, State. 2000(1) SLJ SC 320 wherein the Hon'ble Supreme Court has observed that it is true that Section 10 deals with the case of abetment of offences defined under Sections 8 and 9 and it is also true that Section 12 specifically deals with the case of abetment of offences under Sections 7 and 11. 2000(1) SLJ SC 320 wherein the Hon'ble Supreme Court has observed that it is true that Section 10 deals with the case of abetment of offences defined under Sections 8 and 9 and it is also true that Section 12 specifically deals with the case of abetment of offences under Sections 7 and 11. But that is no ground to hold that the Prevention of Corruption Act does not contemplate abetment of any of the offences specified in Section 13 of the Prevention of Corruption Act. 17. It has been further held that Section 13 of the Prevention of Corruption Act has been enacted as a substitute for Sections 161 to 165-A of the Penal Code which were part of Chapter IX of that Code under the title "all offences by or relating to public servants". The Court has further gone to observe that one of the objects of the new Act was to incorporate all the provisions to make them more effective. The legislative intent is manifest that abettors of different offences under Section 13 of the Prevention of Corruption Act should also be dealt with along with public servant in the same trial held by the Special Judge. 18. Thus, I do not find any illegality with the order taking cognizance and hence, it never warrants to be interfered with by this Court. Accordingly, it is dismissed. Petition dismissed.