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2019 DIGILAW 151 (ORI)

Arati Sahoo @ Behera v. State of Orissa (VIG)

2019-02-25

J.P.DAS, S.K.MISHRA

body2019
JUDGMENT : S.K. Mishra, J. 1. In this Crl. MP, the petitioner has assailed the order dated 09.08.2018 passed by the learned Special Judge, Special Court, Cuttack in T.R. Case No. 15 of 2008, rejecting her application to drop the proceeding initiated against her of the charge under Sections 13 (1)(e) read with 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the P.C. Act’) and Section 109 of the Indian Penal Code, 1860 (hereinafter referred to ‘as the I.P.C.’). The facts of the case are not in dispute. 2. Brief facts of the case is that a criminal case under Sections 13(1)(e) read with 13(2) of the P.C. Act and Section 109 of the I.P.C. was initiated bearing T.R. No. 15 of 2008 in the court of the learned Special Judge, Special Court, Cuttack against the petitioner and her late husband. Obviously, the allegation was that the husband of the petitioner, who was a public servant, was in possession of disproportionate assets and hence, charge-sheet filed against him under Section 13(1)(e) read with 13 (2) of the P.C. Act. Whereas most of the properties stands in the name of the petitioner, who is not a public servant and admittedly, she is not an income tax assessee, the charge under Section 13(1)(e) read with 13(2) of the P.C. Act and Section 109 of the I.P.C. has been framed against her. Fifty-seven witnesses have been examined. The accused-public servant, who happens to be the husband of the petitioner died and the case abated against him. Thereafter, the present petitioner filed an application before the learned Special Judge, Special Court, Cuttack that the criminal case cannot be continue against her, in view of the death of her husband, the main accused. That application was heard and disposed of by the learned Special Judge, Special Court, Cuttack on 09.08.2018. While dealing with the same, the learned Special Judge, Special Court, Cuttack said that even in case of death of the main offender, the case shall stand against the abettor. 3. In assailing the findings of the learned Special Judge, Special Court, Cuttack, learned counsel for the petitioner relies upon the exact words used in Section 13 of the P.C. Act wherein the criminal misconduct by a public servant has been defined. 3. In assailing the findings of the learned Special Judge, Special Court, Cuttack, learned counsel for the petitioner relies upon the exact words used in Section 13 of the P.C. Act wherein the criminal misconduct by a public servant has been defined. Relevant portions of Section 13 of the P.C. Act are quoted as follows: "Criminal misconduct by a public servant: (1) A public servant is said to commit the offence of criminal misconduct:- xxx xxx xxx xxx xxx (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, or pecuniary resources or property disproportionate to his known sources of income. xxx xxx xxx xxx xxx" 4. Giving more emphasis on the expression "for which the public servant cannot satisfactory account", learned counsel for the petitioner submits that the surviving accused should be discharged from the criminal proceeding, as she was not in possession and has no means to explain the disproportionate property held by her husband is disproportionate to his known sources of income. In course of hearing, learned counsel for the petitioner relies upon the up-reported case i.e. in the case of K. Veeraswami vs. Union of India and Others, (1991) 3 SCC 655. We feel it appropriate to take note of the paragraph 75 of the said judgment which reads as follows: "In the view that we have taken as to the nature of the offence created under clause (e), it may not be necessary to examine the contention relating to ingredient of the offence. But since the legality of the charge sheet has been impeached, we will deal with that contention also. Counsel laid great emphasis on the expression "for which he account satisfactorily account" used in clause (e) of Section 5(1) of the Act. He argued that that term means that the public servant is entitled to an opportunity before the Investigating Officer to explain the alleged disproportionality between assets and the known sources of income. The Investigating Officer is required to consider his explanation and the charge sheet filed by him must contain such averment. The failure to mention that requirement would vitiate the charge sheet and renders it invalid. This submission, if we may say so, completely overlooks the powers of the Investigating Officer. The Investigating Officer is required to consider his explanation and the charge sheet filed by him must contain such averment. The failure to mention that requirement would vitiate the charge sheet and renders it invalid. This submission, if we may say so, completely overlooks the powers of the Investigating Officer. The Investigating Officer is only required to collect material to find out whether the offence alleged appears to have been committed. In the course of the investigation, he may examine the accused. He may seek his clarification and if necessary he may cross check with him about his known sources of income and assets possessed by him. Indeed, fair investigation requires as rightly stated by Mr. A.D. Giri, learned Solicitor General, that the accused should not be kept in darkness. He should be taken into confidence if he is willing to cooperate. But to state that after collection of all material the investigating Officer must give an opportunity to the accused and call upon him to account for the excess of the assets over the known sources of income and then decide whether the accounting is satisfactory or not, would be elevating the Investigating Officer to the position of an enquiry officer or a judge. The investigating officer is not holding an enquiry against the conduct of the public servant or determining the disputed issues regarding the disproportionality between the assets and the income of the accused. He just collects material from all sides and prepares a report which he files in the Court as charge-sheet." 5. It is apparent from the aforesaid judgment that the Hon'ble Supreme Court have considered whether there is failure on the part of the Investigating Officer to give adequate chance to the public servant to explain the alleged dispropertionality between assets and the known sources of income. While examining such point, the Hon'ble Supreme Court held that it is the duty of the Investigating Officer only to collect material from all sides and prepares a report which he files in the court as charge-sheet. The disproportionality between the assets and the income of the accused is to be determined by the court and not by any other agency. 6. Having given our anxious thought in the matter, we are of the opinion that no doubt the main accused has died and the case is abated against him. The disproportionality between the assets and the income of the accused is to be determined by the court and not by any other agency. 6. Having given our anxious thought in the matter, we are of the opinion that no doubt the main accused has died and the case is abated against him. But there is no provision under the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Cr.P.C.’ for brevity) that on such occasion, the criminal proceeding against the abettor shall come to an end. Of course, this Court in exercise of jurisdiction under Section 482 of the Cr.P.C. can pass any order in the interest of justice or to prevent the abuse of process of law. But, in our considered opinion, whether the offence under Section 13(1)(e) read with 13(2) of the P.C. Act has been proved or whether the public servant cannot satisfactorily account for or the property disproportionate to his known sources of income has to be determined at the end of the trial not at the midst of the trial. 7. Moreover, in the case Wakil Yadav and Another vs. State of Bihar, (2001) SCC (Cri) 1499, the Hon'ble Supreme Court held that abetment to an offence of corruption was itself a distinct offence for which a charge could be framed. Now, in this case, even if the charge under Section 13(1)(e) read with 13(2) of the P.C. Act could not be proved, Section 13(1)(e) read with 13(2) of the P.C. Act and Section 109 of the I.P.C. being separate and distinct charge, the trial is to be continued. 8. Similarly, Mr. Srimanta Das, learned Senior Standing Counsel for the Department of Vigilance Department brings to the notice of this Court on a reported judgment rendered by Hon'ble Justice Shiv Narayan Dhingra of High Court of Delhi in the case of Siddarth Verma vs. C.B.I. (2010) 4 CCR 214, wherein it has been held: "I consider that learned Special Judge rightly dismissed the application of the petitioner for discharge. Charges were framed against two accused persons, against one for substantive offence and against other for abetment. If the main accused has died, that does not mean that substantive offence stands wiped out. Charges were framed against two accused persons, against one for substantive offence and against other for abetment. If the main accused has died, that does not mean that substantive offence stands wiped out. The offence committed by the deceased, accused of amassing wealth through corrupt means, does not stand wiped out and the wealth still stands there in the hands of LR of the deceased/ accused and the role of the petitioner of acting as a conduit for amassing wealth for his father can be proved by CBI during trial. I, therefore, find no force in this petition. The petition is hereby dismissed." 9. In view of such verdicts/pronouncements and our discussions made above, we are of the opinion that we cannot pass any order to quash the aforesaid proceeding pending against the petitioner under the Special Courts Act, 1979. 10. Hence, this Crl. MP filed under Articles 226 and 227 of the Constitution of India challenging the impugned order dated 09.08.2018 passed by the learned Special Judge, Special Court, Cuttack in T.R. Case No. 15 of 2008 is dismissed being devoid of any merit. There shall be no order as to costs.