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Karnataka High Court · body

2017 DIGILAW 10 (KAR)

Tulsiram v. State

2017-01-02

B.A.PATIL

body2017
ORDER : B.A. Patil, J. 1. The present petition is filed by the accused assailing the order dated 21.1.2016 passed by the Special Judge, Principal District and Sessions Judge, Bidar in Spl. Case No. 50/2011 rejecting the application for discharge. 2. The records reveal that the petitioner-accused was working as First Division Assistant in Sericulture Department. On the reliable sources of information, Deputy Superintendent of Police, attached to Lokayuktha reported on 27.12.2008 that the accused-petitioner has amassed wealth disproportionate to his known source of income. On the basis of the report, a case was registered in Crime No. 9/2008. Thereafter after obtaining the search warrant, the search was done by the Investigating Officer on 30.12.2008. During the course of search, some articles have been seized including certain records. After collection of the material, accused was called upon to submit his statement. He has submitted his detailed statement along with the supportive documents. After verifying the said records, the Investigating Authority came to the conclusion that the explanation offered by the accused-petitioner is not satisfactory and as such a final report was submitted holding that during the period between 7.2.1983 to 29.12.2008 the petitioner was possessing disproportionate assets to the extent of Rs. 16,01,098/- which is amounting to excess of his known source of income to 35.94%. After filing of the charge sheet, accused was secured and he filed an application under Section 239 of Cr.P.C. for discharge. The learned Special Judge after hearing both sides, passed an order rejecting the application under Section 239 of Cr.P.C. by the order dated 21.8.2014. Being aggrieved by such order, the petitioner-accused preferred Criminal Revision Petition No. 200063/2014 before this Court. This Court by the order 27.8.2015 allowed the petition by setting aside the impugned order dated 21.8.2014 and remitted the matter to the trial Court with a direction to consider all the documents, statements including all the volumes and the explanation offered by the accused and keeping in view the observations made in the said order, and pass an appropriate order. After remand, the trial Court after hearing both the parties has passed the order dated 21.1.2016 which is now challenged before this Court. 3. I have heard the learned counsel for the petitioner and the learned Special PP for the respondent-State. 4. After remand, the trial Court after hearing both the parties has passed the order dated 21.1.2016 which is now challenged before this Court. 3. I have heard the learned counsel for the petitioner and the learned Special PP for the respondent-State. 4. It is contended by the learned counsel appearing on behalf of the petitioner that the trial Court has not followed the specific directions issued by this Court and has passed the impugned order in gross violation of the said directions. It is also contended that the Special Judge has not taken into consideration the lawful sources of income as per the records and the income earned from the rent, goat raring, breeding and sale of goat, etc. It is further contended that the petitioner has declared his income through agriculture, rent, horticulture, goat raring, breeding and sale of goats and if that is taken into consideration, there is no excess. The Special Judge has rejected the said sources and has passed the impugned order which is against the principles laid down by the Apex Court. Learned counsel for the petitioner has also contended that the application filed under Section 239 of Cr.P.C. has not been properly considered and appreciated by the trial Court. It is his further contention that the preliminary enquiry is conducted by the police without registration of the FIR or the complaint and hence such investigation is not an investigation and therefore the entire charge sheet filed is not sustainable in law. It is contended that total assets acquired by the petitioner was calculated at Rs. 20,62,918/-, the expenditure was calculated at Rs. 39,91,944/-. Therefore, the total assets and expenditure was calculated at Rs. 60,54,862/-. The total known sources of income is Rs. 44,53,764/-. Therefore, it was calculated that the disproportionate assets were at Rs. 16,01,098/-. Further it is contended that out of the said assets and expenditure if 10% margin of the benefit is provided as per the norms of the Apex Court, then the disproportionate assets will hardly be Rs. 11,55,722/- which has been explained by the accused as to how he acquired agricultural properties, lease agreements, declared gold ornaments, family business of sheep and goat raring by his wife and mother, agricultural income and advance amount received for sale of his land. If all the materials are looked into, there is no excess income and therefore accused is entitled to be discharged. If all the materials are looked into, there is no excess income and therefore accused is entitled to be discharged. If that aspect is taken into consideration, the explanation offered by the accused-petitioner appears to be just and proper. In that light, the trial Court ought to have allowed the application. On these grounds, he prayed for allowing this petition by setting aside the impugned order. 5. Keeping in view the above submissions, let me consider whether the impugned order calls for any interference by this Court. Learned counsel for the accused-petitioner has given the details of the incidents and the sources of the income of the petitioner which runs about six pages. I have gone through the same. I have also gone through the detailed order (running into 44 pages) passed by this Court. In the said order this Court after discussing all the aspects in detail even including the bills produced and the receipts issued, has come to the conclusion that the trial Court has not considered those aspects. The said documents could have been considered and reasoned out by a separate order. In that light, the case was remitted to the trial Court. 6. On going through the order of this Court, it is clear that this Court had directed the Court below to look into the documents produced along with the charge sheet and in separate volume and pass appropriate order. As could be seen from the order of the trial Court, the trial Court after considering those documents has come to the conclusion that deep analysis and appreciation of the documents and evidence is not required at that stage and trial is necessary to establish the truthfulness or otherwise of the said documents. Even it is observed that the accused has not made out sufficient ground for discharge. Though the Court is required to record its reasons only if it decides to discharge the accused, but in the instant case, the Court below after detailed discussion has not discharged the accused by giving various reasons. In that light, it is not just and proper to interfere with the order of the trial Court. 7. Though the Court is required to record its reasons only if it decides to discharge the accused, but in the instant case, the Court below after detailed discussion has not discharged the accused by giving various reasons. In that light, it is not just and proper to interfere with the order of the trial Court. 7. It is well established principles of law that this Court can exercise its inherent power but it should not enter into merits of the case and pronounce upon truth and correctness of the complainant or defence, that too when the evidence is required. The Sessions Judge has opined that such receipts of the income and assets will not make out sufficient grounds for discharging the accused by accepting his say. When the matter requires to be proved by cogent and sufficient evidence, then under such circumstances, no interference is called for by this Court. Only on cursory glance of the documents produced by the prosecution as well as the accused, no detailed evaluation of the material or meticulous consideration of the defence cannot be taken into consideration by this Court to give its opinion with regard to discharge of the accused. So many documents are intended to be relied upon by the accused so also by the prosecution for establishing their cases and under such circumstances, the said documents are to be proved and established in accordance with law. The accused can be discharged only after considering all the material that there are no grounds to proceed with the case against the accused. In that light, this Court declines to interfere with the order of the trial Court. No doubt it is true that during the course of the arguments the learned counsel for the petitioner has submitted that the trial Court has not followed the directions issued by this Court and there is no proper evaluation of the documents, but such documents cannot be weighed at this stage with golden scale, that too, when the evidence is not commenced to substantiate the contention of either of the parties. Time and again Apex Court has pointed out that at the stage of framing of charge the Court should not enter upon a process of evaluating the evidence by deciding its work or credibility. Time and again Apex Court has pointed out that at the stage of framing of charge the Court should not enter upon a process of evaluating the evidence by deciding its work or credibility. At the time of framing of charge, the limited exercise has to be made to find out whether the material offered by the prosecution to be adduced as evidence is sufficient for the Court to proceed further. Rest of the thing has to be established by the accused only after the prosecution adduces its evidence. In that light, if the entire material is looked into, it appears that the said material is sufficient to frame the charge against the accused for the alleged offence. No doubt the prosecution has to establish that the pecuniary assets acquired by the public servant are disproportionately larger than his known sources of income and then it is for the public servant to give accounts for such excess. The offence becomes complete on the failure of the public servant to affirm or explain such excess. This exercise can be completed only during the course of trial. 8. In so far as the contention of the learned counsel for the petitioner that without registering the FIR a preliminary enquiry has been made by the Investigating Officer which is not permissible in law and on that ground also, the accused is entitled to be discharged is concerned, the said issue also requires to be considered only when the evidence is led by the prosecution and the Investigating Agency is examined before the Court. The accused will be at liberty to urge all those points at the time of arguments and the Court below can also consider the same. At this premature stage, this Court cannot interfere with the impugned order on those technical aspects. Hence, petition fails and accordingly, the same stands dismissed.