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Madhya Pradesh High Court · body

2016 DIGILAW 949 (MP)

Rajkamal Sharma v. State Of M. P.

2016-10-21

S.C.SHARMA, VED PRAKASH SHARMA

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ORDER : VED PRAKASH SHARMA, J. Legality, correctness and propriety of order dated 5-7-2016 rendered by learned Special Judge, Ujjain (under the Prevention of Corruption Act, 1988 for short ‘the Act of 1988’) in Special ST No. 07/2016 has been challenged in this revision preferred under section 397/401 of the Code of Criminal Procedure, 1973 (for short ‘the Code’) by petitioner Rajkamal Sharma against whom a charge-sheet for offence under section 13(1)(e) read with section 13(2) of ‘the Act of 1988’ has been filed by the Respondent before the Special Court. 2. The Petitioner who commenced his career in June, 1979 as Junior Engineer in the Madhya Pradesh State Electricity Board and was eventually promoted to the post of Assistant Engineer, Madhya Pradesh Paschim Kshetra Vitaran Company Ltd., Indore was allegedly trapped on 27-12-2012 accepting illegal gratification in the sum of Rs. 10,000/-. Allegedly, thereafter raids were conducted on his premises and on investigation, it was found that he was possessed of assets disproportionate to the known sources of his income. As per the charge-sheet, it was found that on a computation of income assets and expenditure for the check period, the petitioner was possessed of assets worth Rs. 1,52,39,652/- though his income from known sources was only Rs. 9258232/-. Thus, he had assets worth Rs. 59,84,420/- meaning thereby 64.6% in addition to his known sources of income. 3. The petitioner submitted an application on 14-6-2016 before the learned trial Court, purportedly under section 156(3), 173(8) and 465(2) of ‘the Code’, praying therein for issuance of direction to conduct further investigation in the matter in order to examine his plea with regard to his own income from various other sources as well as the income of his family members, which, as alleged by the petitioner, was not taken into consideration by the investigation agency in order to falsely implicate him. The prayer made by the petitioner was opposed by the respondent. It was submitted that all the points raised by the petitioner in his application for further investigation can well be raised by him during trial by adducing evidence in defence, therefore, no ground is made out for further investigation in the case. 4. The prayer made by the petitioner was opposed by the respondent. It was submitted that all the points raised by the petitioner in his application for further investigation can well be raised by him during trial by adducing evidence in defence, therefore, no ground is made out for further investigation in the case. 4. The learned Special Judge, vide the impugned order after considering rival submission of the parties declined to accept the prayer for re-investigation/further investigation and rejected the application moved by the petitioner holding that the points raised by the petitioner in his application are matters of defence which can be raised by him at the appropriate stage. 5. The impugned order has been challenged before this Court on the ground that the learned trial Court without properly appreciating the relevant provisions of ‘the Code’ including section 173(8) and without carefully considering the pleas raised by the petitioner has rejected the application, therefore, the impugned order deserves to be quashed. Reliance has been placed on the decision of the Apex Court in Pooja Pal vs. Union of India, (2016) 3 SCC 135 , Vinay Tyagi vs. Irshad Ali alias Deepak and others, (2013) 5 SCC 762 and Dharam Pal vs. State of Haryana, (2016) 4 SCC 160 . 6. Per contra, learned counsel for the respondent has submitted that all the relevant material collected by the investigating agency has been placed before the learned trial Court along with charge-sheet. The issues raised by the petitioner, basically and substantially pertain to his defence, which he can raise at the appropriate stage. It is submitted that no plausible ground for further investigation is made out in the present case, therefore, it cannot be said that the learned trial Court has committed any error in declining to accept the prayer for further investigation. 7. Heard the learned counsel for the parties and perused the record. 8. A perusal of application submitted by the petitioner before the learned trial Court, a copy of which has been annexed with this petition, indicates that the petitioner has raised various points of defence in order to demonstrate that the computation made by the investigating agency to show that he was possessed of disproportionate assets is incorrect. 8. A perusal of application submitted by the petitioner before the learned trial Court, a copy of which has been annexed with this petition, indicates that the petitioner has raised various points of defence in order to demonstrate that the computation made by the investigating agency to show that he was possessed of disproportionate assets is incorrect. The petitioner has further stated in his detailed application, running into almost 25 pages, about the alleged sources of his own income as well as the income of his family members, which, according to him, has not been taken into consideration by the investigating agency. As a matter of fact, the petitioner has raised various points of defence by way of his application and has prayed for consideration of the same by the investigating agency. 9. In a case where it is alleged that a public servant has acquired property disproportionate to his known sources of income, though initial burden is on the prosecution, however, it is for the accused to account satisfactorily about the properties/assets in his hand and satisfy the Court that his explanation is plausible. This can be done either by cross-examining the prosecution witnesses and eliciting the necessary material in support of the defence or to adduce evidence before the Court in support of such plea. (Refer State of Maharashtra vs. Awadh Kishore Gupta and ors,, 2004(1) SCC 691 ) 10. Though it is contended by Shri Mathur, the learned counsel for the petitioner, that the investigating agency has purposefully neglected the details provided by the petitioner regarding his income and expenditure and that a large amount of income earned legally by the appellant and his family members has been overlooked without showing justifiable reason or cause; however, as ordained by Hon’ble the Apex Court in the case of State of Maharashtra vs. Ishwar Piraji Kalpatri, AIR 1996 SC 722 . The opportunity which is to be afforded to the delinquent officer of satisfactorily explaining about his assets and resources is before the Court when the trial commences and not an earlier stage. Relevant observations in this regard are as under : “…. The opportunity which is to be afforded to the delinquent officer under section 5(1)(e) of satisfactorily explaining about his assets and resources is before the Court when the trial commences and not at an earlier stage.” 11. Relevant observations in this regard are as under : “…. The opportunity which is to be afforded to the delinquent officer under section 5(1)(e) of satisfactorily explaining about his assets and resources is before the Court when the trial commences and not at an earlier stage.” 11. The prayer made by the petitioner, if read between the lines, clearly indicates that in the guise of further investigation he wants to establish his defence, however, as held by the Apex Court in Ishwar Piraji Kalpatri (supra), he has to satisfactorily account/explain about his assets not before the investigating agency but before the trial Court after commencement of the trial. 12. The authorities relied upon by the learned counsel for the petitioner are on issues dealing with power of the Court to direct further investigation or fresh investigation as well as the protective role of the constitution Courts to ensure fair investigation. In Dharam Pal’s case (supra), the Apex Court has held that the constitutional Courts can direct for further investigation or investigation by some other investigating agency. The purpose is, there has to be a fair investigation and a fair trial. The fair trial may be quite difficult unless there is a fair investigation, however, direction for further investigation by another agency has to be very sparingly issued. In Pooja Pal’s case (supra), it has been held that criminal investigation is a lawful search for people and things useful in reconstructing the circumstances of an illegal act or omission and the mental state accompanying it. It is probing from the known to the unknown, backward in time, and its goal is to determine truth as far as it can be discovered in any post-factum inquiry. It has further been observed that successful investigations are based on fidelity, accuracy and sincerity in lawfully searching for the true facts of an event under investigation and on an equal faithfulness, exactness, and probity in reporting the results of an investigation. In Vinay Tyagi’s case (supra), the Apex Court has reiterated the settled legal position with regard to the power of the superior Courts to issue direction for further investigation or de novo investigation or reinvestigation, as the case may be. 13. None of these authorities lay down that the points proposed or intended to be raised by the accused by way of defence should be examined during investigation. 13. None of these authorities lay down that the points proposed or intended to be raised by the accused by way of defence should be examined during investigation. As laid down in Ishwar Piraji Kalpatri’s case (supra), a public servant/accused of being in possession of disproportionate assets is required to establish his defence before the trial Court and that the investigating agency is not under an obligation to look into the same. 14. In view of the aforesaid, no fault can be found with the impugned order, therefore, this petition being devoid of merits, deserves to be and is, accordingly, hereby dismissed.