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2012 DIGILAW 1704 (BOM)

State (CBI) v. Bhimraj Sagar

2012-09-07

A.P.LAVANDE

body2012
Judgment This appeal has been preferred by CBI, challenging the order of acquittal dated 1st December, 2004, passed by the Special Judge, South Goa, Margao in Special Case No. 4 of 2002 (new), acquitting the respondent-accused of the offence punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988. 2. The charge against the respondent-accused was that for the period from 17.1.1989 to June, 1995, while functioning as Operation Officer at Hindustan Petroleum Corporation Ltd., Vasco Terminal, Vasco-da-Gama, Goa he abused his official position and amassed wealth disproportionate to his known source of income i.e. he acquired total assets worth Rs.8,33,000/-and was in possession of disproportionate assets to the tune of Rs. 4,58,773/-and thereby committed an offence punishable under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988. 3. The accused pleaded not guilty to the charge. 4. Prosecution examined 25 witnesses, including the Investigating Officer, whereas the accused examined 4 witnesses in defence. 5. The statement of the accused was recorded under Section 313 of Cr.P.C. The learned Special Judge, by impugned Judgment and Order, acquitted the accused of the said offence. 6. My attention was invited to the Judgment and Order of acquittal, by the learned Special Public Prosecutor. Perusal of the impugned Judgment and Order discloses that the learned Special Judge has not marshalled the evidence led by the prosecution in the case. The learned Special Judge has not referred to the evidence of majority of the witnesses examined by the prosecution in support of the charge and without marshalling the evidence led by the prosecution and also by the accused, has recorded the order of acquittal. Admittedly, a number of documents were produced by the prosecution as well as by the accused. But, no reference has been made to all the relevant documents produced in the course of the trial. No doubt, the appellate Court is entitled to reappreciate the entire evidence in a criminal case. However, in a case where the prosecution tenders voluminous evidence – oral and documentary, it is expected of the Magistrate/Sessions Judge to critically analyse the evidence led by the prosecution as well as by the accused. This is a basic exercise which has to be undertaken by the Magistrate/Sessions Judge. However, in a case where the prosecution tenders voluminous evidence – oral and documentary, it is expected of the Magistrate/Sessions Judge to critically analyse the evidence led by the prosecution as well as by the accused. This is a basic exercise which has to be undertaken by the Magistrate/Sessions Judge. However, as stated above, the learned Special Judge has not marshalled the evidence by referring to the relevant evidence – oral and documentary led by both sides. I, therefore, called upon the learned Special Public Prosecutor to address on the issue as to why the matter should not be remanded to the Special Judge, with a direction to marshal the evidence and give findings on the evidence led by the prosecution as well as by the accused. Mr. Vaz, learned Special Public Prosecutor fairly submitted that he will have no objection if the matter is remanded to the Special Judge. 7. Mr. Usgaonkar appearing for the accused submitted that the Special Judge has considered the relevant evidence and further submitted that this Court may undertake the exercise of marshalling the entire evidence which is permissible for the appellate Court. However, Mr. Usgaonkar did not dispute seriously that the Special Judge has not marshalled the evidence led by both sides, as required by law. 8. Considering that a voluminous evidence was led on behalf of the prosecution and also the accused examined four witnesses in defence, I am of the considered opinion that it would be appropriate to remand the matter to the Special Judge, at Margao for marshalling the evidence and to give findings thereafter. 9. In the result, therefore, the impugned Judgment and Order of acquittal is set aside and the matter remanded to the Special Judge, at Margao for fresh consideration, in the light of the observations made above. Bail bond executed by the respondent-accused stands discharged. 10. The parties shall appear before the learned Special Judge, at Margao on 12th October, 2012 at 10.00 a.m. The learned Special Judge shall dispose of Special Case No.4 of 2002 (new), after giving an opportunity of addressing arguments to both sides, in accordance with law, in the light of the observations made above. Considering that the special case is of the year 2002, learned Special Judge may consider disposing of the case expeditiously. Considering that the special case is of the year 2002, learned Special Judge may consider disposing of the case expeditiously. Learned Special Judge may call upon the accused to execute fresh bail bond in case she deems fit and proper. 11. The appeal is disposed of accordingly. Registry to send the record and proceedings expeditiously to the Court of Special Judge, South Goa, at Margao.