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2018 DIGILAW 81 (GUJ)

Dilipsinh Kishorsinh Rao v. State of Gujarat

2018-01-11

S.G.SHAH

body2018
JUDGMENT : 1. Heard learned advocate Mr. A. D. Shah for the petitioner and learned public prosecutor Mr. Mitesh Amin with learned APP Mr. Manan Mehta for respondent – State. Perused the record. 2. Petitioner herein is facing charges under Section 13(1)(e) and 13(2) of the Prevention of Corruption Act. Charges against the petitioner is to the effect that while serving in Gujarat Police on different posts, during the period between 2005 and 2011, he has acquired disproportionate income to the tune of Rs.51,34,428/-. Therefore, complaint was filed against him on 31.03.2013 and after investigation he has been charge-sheeted. However, it is the case of the petitioner that he has been unnecessarily targeted because of some or the other reasons and that he has disclosed his accounts and calculations so as to prove that properties purchased by him is based upon his income and other source of funds by legal means at his end and there is no disproportionate assets. Therefore, petitioner has preferred an application at exhibit 11 before the Special Judge, Anand in Special Case No.1 of 2015 registered against him for above offences, to drop the proceedings and the charges levelled against him. Such application at exhibit 11 has been rejected by impugned order dated 13.04.2016, which is under challenge in this revision. 3. The sum and substance of the petitioner’s application and this revision petition is to the effect that during investigation, the investigating officer has failed to consider his further written statement dated 13.08.2014 and that though he has obtained permission for visiting Australia so also for purchasing movable and immovable properties and that he has furnished details of sale of his house for purchasing new properties, and thereby when he has informed the department on each occasion of his investment and purchase and furnished details, unfortunately, the investigating agency has failed to consider his reply and explanation and even sanction granted by the department for specific transactions while filing of charge sheet. It is further submitted that there is error in calculation of disproportionate asset and that though his clear income is Rs.82,67,140/- the investigating agency has considered it as Rs.1,15,35,319/- and thus considered disproportionate income of Rs.32,68,258/-. However, it is disclosed that disproportionate income is Rs.51,34,428/-. It is further contended that charge sheet papers do not reveal any circumstance or documentary evidence to reach to the conclusion that disproportionate income is Rs.32,68,258/-. However, it is disclosed that disproportionate income is Rs.51,34,428/-. It is further contended that charge sheet papers do not reveal any circumstance or documentary evidence to reach to the conclusion that disproportionate income is Rs.32,68,258/-. It is further contended that statement of witnesses are not much material in such case, whereas department has failed to consider different source of income vize. (1) Salary income, (2) agricultural income (3) Professional income of wife, (4) Interest income of investment, (5) Rental income, (6) Loan amount obtained, (7) amount received from son Yuvraj, (8) Rental income of the shop, (9) Amount received from parents (10) amount received from friends against promissory note and through bank accounts. It is therefore, submitted that petitioner has already disclosed the source of income to the tune of Rs.1,13,14,986/- and expenditure or Rs.97,17,096/- which reveals that there is only liability of Rs.15,97,917/- due to debt. However, investigating agency has not taken into consideration the amount which is obtained under loans and which is taken from the friends and family members which is duly supported by the documentary evidence. Therefore, it is submitted that when calculation are properly provided and when there is no evidence to show that such accounts are neglected or fails to prove that even granting sanction by the sanctioning authority is without application of mind and when charge sheet does not disclose the commission of offence as narrated by the investigating agency, petitioner needs to be discharged. 4. However, the trial Court has, by impugned judgment simply recorded that the Court has gone through the application and the documents and referred the decision in case of Girishbhai Maganlal Pandya vs. State of Gujarat reported in 2016 (1) GLH 126 and quoted one paragraph of such judgment as below; “Thus, bearing in mind the principles laid down by the Supreme Court in the afore-noted cases, it could be said that at the stage of Sections 227 and 228 of the Code, it is permissible for the Court to evaluate the materials and documents on record with a view to finding out it the facts emerging therefrom taken at their face value discloses existence of all the ingredients constituting the alleged offence. It is permissible for the Court for this limited purpose to sift the evidence, as it cannot be expected even at that initial stage to accept all that the prosecution states as a gospel truth, even if it is opposed to the common sense or the broad probabilities of the case.” and discussed following aspects; “Whether the accused has taken loans from his family member and friends is a question of fact, which is to be decided during trial; - information regarding purchase of property to the department under Rules dos not give clean chit; - authenticity with regard to disproportionate income is also taken into consideration, while filing of charge sheet against the accused and also while granting sanction; - when sanction is accorded, whether there is non application of mind is also question of fact; - the bulk of record placed on record with the charge sheet prima facie shows that all the ingredients of disproportionate income is proved; - even if two views are possible, the suspicion is against the accused with regard to the loan account and other income from Australia and agricultural income; - at this stage, the Court is not required to make into a roving inquiry and weighing evidence as if trial is concluded.” 5. Based upon the above averments, if we peruse the charge sheet, it becomes clear that the charges against the petitioner is to the effect that for the period between 2005 and 2011 it is alleged that petitioner has misused his powers and based upon his corrupt attitude and practices, he has obtained illegal gratification in case kind and in cash in his name and also in name of his wife to the tune of Rs.1,15,35,319/- against his income from known source, which is only Rs.82,67,140/-. Thereby, there is disproportionate asset to the tune of Rs.32,68,258/-, which is more than 40% of the known source of income and, therefore, he is to be prosecuted a aforesaid. Thereby, there is disproportionate asset to the tune of Rs.32,68,258/-, which is more than 40% of the known source of income and, therefore, he is to be prosecuted a aforesaid. However, further perusal of charge sheet makes it clear that though charges can be limited to the above extent only the investigating agency has no option but to record and disclose several information in column 5 of the charge sheet itself, wherein there are material contradictions in disclosing different amounts with different heads and thereby though initially allegation is regarding disproportionate asset of Rs.51,34,428/-, ultimately charge sheet is filed disclosing disproportionate asset to the tune of Rs.32,68,258/-. 6. The respondents have objected such application on the ground that petitioner has not disclosed all the information when matter was investigated and at this stage no further evidence can be accepted and that when as many as 7 statements of petitioner was recorded between 07.01.2013 and 25.06.2014, he has not disclosed the factual details regarding loan if any, received from family members and friends and, therefore, now that fact cannot be considered. 7. As against that, petitioner is relying upon the written statement dated 19.08.2014 i.e. just after couple of months from the last date of his statement recorded by the investigating officer. However, the fact remains that though First Information Report is dated 31.03.2013, charge sheet is filed only on 17.06.2015 and thus after 10 months from the last date of statement by the petitioner. Therefore, it cannot be said that such written statement was afterthought and thus after filing of the charge sheet only and therefore it is to be ignored. 8. One more issue which is relevant to be recollected here that though there is allegation that petitioner has indulged into corrupt practices to acquire such disproportionate asset, prosecution could not prove any such instance and when they have came forward with disclosure that petitioner is involved in corrupt practices while investigating few cases but no further details can be proved by the prosecution agency. On the contrary though petitioner was prosecuted in different cases under provisions of Prevention of Corruption Act, in fact he has been acquitted from all such cases, being Special Case No.17 of 1989, wherein even appeal against acquittal being Criminal Appeal No.780 of 1996 was also dismissed by the High Court. On the contrary though petitioner was prosecuted in different cases under provisions of Prevention of Corruption Act, in fact he has been acquitted from all such cases, being Special Case No.17 of 1989, wherein even appeal against acquittal being Criminal Appeal No.780 of 1996 was also dismissed by the High Court. Similarly, petitioner has been acquitted from the Sessions Case No.16 of 1997 and Criminal Appeal No.1098 of 2004 was dismissed by the division bench of this Court on 28.03.2006 and, therefore, it is contended that when there is clear judgment of acquittal in favour of the petitioner and when appeal against such acquittal has been dismissed by the High Court, now, it cannot be said that petitioner has been involved in the corrupt practices and, therefore, respondents have to prove the disproportionate asset beyond reasonable doubt and mere allegation would not be sufficient. In support of his case, petitioner is relying upon the following decisions; (1) 1997 SCC (Cri) 857 between Vijendra vs. State of Delhi, (2) AIR 2015 SC (Supp) 2159 between Kedari Lal vs. State of M. P. & Ors (3) 2017 Law Suit (SC) 781 between Central Bureau of Investigation vs. Anup Kumar Srivastava (4) 2017 Law Suit (SC) 786 between Vasant Rao Guhe vs. State of Madhya Pradesh 9. In addition to law point, petitioner has disclosed his accounts in written submissions, which goes to show that even electricity bill of the shop which is rented to the tenant has been considered as an expenditure of the petitioner and expenses of education of son at Australia is also considered as lumpsum though son is earning at Australia. Though it is observed by the trial Court that disclosure of transactions of movable and immovable properties to the office may not be considered as approved transactions, the fact remains that when such transaction has been disclosed to the office with source of income then those facts need to be scrutinized by the investigating agency and to that extent their stand that disclosure of such fact in written submissions dated 16.08.2014 cannot be looked into when such fact is not disclosed in his statement before the Investigating Officer is unwarranted. It is quite clear and obvious that petitioner has disclosed at the relevant time that he has already conveyed the department about his transactions and source of income for such transactions. It is quite clear and obvious that petitioner has disclosed at the relevant time that he has already conveyed the department about his transactions and source of income for such transactions. In view of such submissions, it is the duty of the investigating agency to find out the material. 9.1 It is also undisputed fact that petitioner has produced promissory note for the loan obtained by him from the friends with evidence regarding transactions in the form of bank statement and when such amount is received and accepted on paper by cheque against executing promissory note, it can never be said that such amount has been obtained towards illegal gratification or by way of corruption and thereby it can be said that such amount is to be considered as disproportionate asset. The petitioner has produced a copy of such Panchnama and bank statement on record which was never considered by the investigating agency. In para 4.1 and 4.2 of the petitioner, the petitioner has disclosed in detail about each and every transactions, reproduction of which would simply increase the length of this order when it is specifically averred in the petition in as many as 11 pages with full details. 9.2 Petitioner has also annexed relevant documents though he has disclosed all his transactions before the department at the relevant time, when in fact department has granted prior sanction for purchasing some properties and, therefore, it can be said that there cannot be an allegation that such sanction cannot be considered as a seal against corrupt practice. It is also evident from record that while purchasing a residential plot in Section 1 of the Gandhinagar, petitioner has sold his residential plot in Sector 3 of the Gandhinagar and sanction was granted with such clarity that petitioner is permitted to sell his plot in Sector 3, so as to purchase plot in Sector 1. Therefore, by all means, it cannot be said that such immovable properties are purchased from the amount acquired and received by the petitioner as a bribe and therefore it is disproportionate asset only. Therefore, by all means, it cannot be said that such immovable properties are purchased from the amount acquired and received by the petitioner as a bribe and therefore it is disproportionate asset only. Though it may not be material to decide the legal issue, the reason for the dispute as disclosed by the petitioner needs to be recorded herein wherein it is stated that in fact petitioner has purchased a plot which was initially allotted to the Member of the Legislative Assembly by the Government and thereby now he becomes owner of the house in a Sector where politicians are residing, they do not want him to be a neighbor and, therefore, they want him to get rid of this house at any cost. It is also disclosed that lock period for disposing the plot by the Member of Legislative Assembly has been over and, therefore, it is free from any condition and, therefore, petitioner is entitled to purchase such plot from the Member of Legislative Assembly who has now no reason to stay in Gandhinagar and, therefore, he wants to dispose of the same. 10. As against that respondents are relying upon the decision in case of Nitya Dharmananda @ K. Lenin & Anr. vs. Sri Gopal Shellum Readdy also known as Bhaktananda & Anr. in Criminal Appeal No.2114 of 2017 dated 07.12.2017, wherein relying upon the decision in case of State of Orissa vs. Debendra Nath Padhi (2005) 1 SCC 568 , it is confirmed that it is settled law that at the stage of framing of charge, the accused cannot ordinarily invoke Section 91 of the Code. However, in such Judgment, the Court has no option but to record that to impart justice and to uphold the law, it is not debarred from exercising the power, it the interest of justice in a given case so require, even if accused may have no right to invoke Section 91 of the Code. Further confirming that to exercise this power, the Court has to be satisfied that the material available with the investigator, not made part of the charge sheet, has crucial bearing on the issue of framing charge. Further confirming that to exercise this power, the Court has to be satisfied that the material available with the investigator, not made part of the charge sheet, has crucial bearing on the issue of framing charge. Such observations in para 6 and 9 makes it clear that though general, rule is to rely upon the papers of charge sheet and not to rely upon the evidence that may be produced by the accused at the time of framing of charge, the fact remains that if the investigating agency fails to evaluate the material or evidence which is pointed out by the accused in any manner whatsoever then the Court has ample powers to call for such evidence, since the court has to impart the justice and to complete mere administrative formalities as being done by different investigating agency in different mode. In view of above facts and circumstances, revision petition need to be allowed. 11. It is undisputed fact that in the present case, petitioner has not prayed for any order under Section 91, so as to call for any documents from any authority and, therefore also, case of the Nitya Dharmananda (supra) would not be attracted. It is undisputed fact that petitioner has brought it to the notice of the Court that though he has submitted documentary evidence with a written statement to the Investigating Officer to prove his innocence, the Investigating Officer has not bothered to take into consideration such evidence and filed a charge sheet without inquiring or investigating about such evidence. Therefore, now it becomes clear that the investigating agency has acted selectively and to that extent, it is the duty of the Court to call upon the investigating agency to disclose the factual details which is brought to the notice of the Court by the petitioner regarding evidence already produced by him to the investigating agency. Thereby, if the trial Court has failed to do so then it would certainly result into material irregularity, it would be termed as illegality and, therefore, there is reason to interefere with in the impugned order. The overall discussion herein above makes it clear that though there was sufficient evidence before the investigating officer, he has withdrawn such evidence from charge sheet and if such practice is allowed then there would be unnecessary proceedings before the Courts, which are already over burdened. The overall discussion herein above makes it clear that though there was sufficient evidence before the investigating officer, he has withdrawn such evidence from charge sheet and if such practice is allowed then there would be unnecessary proceedings before the Courts, which are already over burdened. Moreover, allowing such practice would also result into permitting the investigating agency to prosecute innocent person also. The overall evidence on record makes it clear that though there is sufficient evidence before the Investigating Officer in the form of promissory note and bank statement, the investigating officer has not bothered to record statement of those persons before confirming that petitioner has committed an offence. Thereby, if the Investigating Officer had recorded the statement of persons from whose account, promissory note has been received by the petitioner, then there would be no evidence to consider that the amount available with the petitioner within the cheque period is disproportionate to his source of income and, therefore, revision petition needs to be allowed. 12. In support of such conclusion, reference to certain judgments of the Apex Court are necessary, which are as under. (1) AIR 1997 S.C. 2041 : State of Maharashtra vs. Priya Sharan Maharaj - It is held that at the stage of framing the charge, the Court has to consider the material with a view to find out if there is ground for presuming that accused has committed an offence or that there is no sufficient ground for proceeding against him and not for the charges by arriving at the conclusion that it is not likely to lead to a conviction. (2) AIR 2000 SC 665 : 2000 SCC(2) 57 : State of MP vs. SB Johari - It was held that, the Court at the stage of S.227 and S.228 is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. Only prima facie case is to be looked into. The charge can be quashed if the evidence which the prosecutor proposes to prove the guilt of the accused, even if fully accepted, it cannot show that accused committed that particular offence. Thus it is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. Thus it is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case there would be no sufficient ground for proceeding with the trial. (3) 2005 SC 359: State of Orissa vs. Debendra Nath Padhi - The Apex Court has held that, it is seen from S.227 of the Code that in a case triable before the Court of Session, if the Court on consideration of the record of the case and the documents submitted therewith and after hearing the submission of the prosecution and the accused if the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused after recording reasons for doing so. (4) (1997) 4 SCC 393 : 1997 AIR SCW 1833 - State of Maharashtra vs. Priya Sharan Maharaj - Referring to the case of Niranjan Singh Karam Singh Punjabi (supra) held that at the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth and even if it is opposed to common sense or the broad probabilities of the case. The Court may, for this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth and even if it is opposed to common sense or the broad probabilities of the case. Therefore, at the stage of framing of the charge, the Court has to consider the material with a view to find out that whether there is any ground for presuming that the accused has committed the offence or that there is not sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction. (5) AIR 2007 SC 2149 : 2007 AIR SCW 3683 – Soma Chakravarty v. State - It is held as under: Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible. (6) AIR 2012 SC 1890 - General Officer Commanding Vs. CBI It is held as under: The cognizance has to be taken of the offence and not of the offender and that it is the duty of the investigating agency to collect and to produce cogent evidence against the accused for framing charge and Court can convict the accused only if such charges i.e. evidence is proved on record without reasonable doubt. Therefore, if there is no chance to prove a commission of offence by the accused, charge cannot be framed. (7) AIR 2009 SC Supp. 1744 - State of M.P. Vs. Sheetla Sahai It is held as under: if the Court arrives at only opinion, there is no evidence against the accused, the Court shall not put accused to harassment by asking him to face a trial. 13. In view of above, order dated 13.04.2016 below exhibit 11 in Special Case No.1 of 2015 by the Additional Sessions Judge and Special Judge, Anand is hereby quashed and set aside. Petitioner has been discharged from the all the charges levelled against him. Rule is made absolute to that extent. Direct Service is permitted.