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2020 DIGILAW 267 (ALL)

Rakesh Dhar Tripathi v. State of U. P.

2020-01-23

DINESH KUMAR SINGH I

body2020
JUDGMENT : DINESH KUMAR SINGH-I, J. 1. Heard Sri Dileep Kumar, learned Senior Advocate assisted by Sri Manish Singh, learned counsel for the revisionist, Sri Attrey Dutt Mishra, learned A.G.A. and perused the record. 2. The instant revision has been preferred against the judgment and order dated 03.08.2019 passed by Special Court (MP/MLA), Allahabad of 2019, State vs. Rakesh Dhar Tripathi, arising out of Case Crime No. 107 of 2013, under section 13 (1) (e) read with section 13 (2) of the Prevention of Corruption Act, Police Station Mutthiganj, District Allahabad whereby discharge application of the revisionist has been rejected. 3. Submission made by the learned counsel for the revisionist is that it is apparent that the evidence collected by the Investigating Officer has not been taken into consideration while rejecting the discharge application. No reason has been assigned to form an opinion that a case existed against the revisionist to frame charge. At the stage of considering the discharge application, sufficient material for framing charge has to be there on record and not simply a prima-facie case. The discharge application has been rejected illegally on the ground that the sanction for prosecution has been accorded and that the court has already taken cognizance on police report/charge sheet submitted under section 173 (2) Cr.P.C. The trial court has completely ignored the supplementary police report filed under section 173 (8) Cr.P.C. with the permission of the Court, which has been filed after approval of the State Government. The supplementary police report completely exonerated the revisionist from accusation that he possessed disproportionate assets while holding post of Cabinet Minister of Govt. of U.P. during the check period. The non-consideration of the police report is against the ratio of the judgment of Hon’ble Supreme Court in Vinay Tyagi vs. Irshad Ali. The evidence which has been collected by the prosecution does not show that any offence has been committed by the revisionist. It is settled position of law that at the stage of consideration of discharge application, the Court ought to proceed with an assumption that materials brought on record by the prosecution are true and therefore in the present case, it is observed that there is no evidence found against the accused-revisionist regarding commission of offence. It is settled position of law that at the stage of consideration of discharge application, the Court ought to proceed with an assumption that materials brought on record by the prosecution are true and therefore in the present case, it is observed that there is no evidence found against the accused-revisionist regarding commission of offence. It is further mentioned that reasons are bound to be recorded while passing the order unless it is specifically excluded by the Legislation and in the present case, the trial court is not found to record reason for rejecting the discharge application. The learned Special Judge has recorded in the impugned order that there is presumption of commission of offence against the accused-revisionist without looking to the fact that such presumption at the stage of consideration of discharge can only be made on the basis of evidence collected during the investigation. 4. It would be pertinent to mention here the grounds which were taken by the revisionist before the court below seeking discharge. In the said application dated 04.02.2017 it has been mentioned that there was no dispute with respect to the income and expenditure of the revisionist rather the sole dispute was of the fact that the documentary evidence which was provided from the side of the revisionist in order to show his income, were ignored due to several technical reasons which was improper. How-so-ever strong doubt may exist but the doubt will never take place of proof. In case diary at page 99-K/224 a mention has been made of final enquiry (DFR) and on the basis of those documents, it was apparent that an amount of Rs. 50,00,000/- was taken as debt by the revisionist but the same was not added in income only because while holding post of Cabinet Minister in U.P. Govt., its information was not given to the Vidhan Sabha Adhyaksh nor any mention was made of the same in affidavit filed at the time of election, while the expenditure of Rs. 40,00,000/- has been added under the head of expenditure. It is against the principle of natural justice as well as provisions of section 13 (1) (e) of the Prevention of Corruption Act because the transaction, which has taken place, was through account using cheque. Non-inclusion of the said amount in the head of income of the revisionist was absolutely erroneous which needed to be added to his income. It is against the principle of natural justice as well as provisions of section 13 (1) (e) of the Prevention of Corruption Act because the transaction, which has taken place, was through account using cheque. Non-inclusion of the said amount in the head of income of the revisionist was absolutely erroneous which needed to be added to his income. Similarly, the wife of the revisionist Smt. Pramila Tripathi had taken debt on various dates between the period 2005 to 2010 through account payee cheque to the tune of Rs. 67,150,000/- which was to be returned after sale of the property but the said amount could not be returned because of litigation, the verification of those income is apparent from the paper no. 95 Ka/235 of the case diary and also a mention is made about it in the final enquiry report at page-45. Smt. Pramila Tripathi has been filing income tax return and she admits ownership of the said income and lives jointly with her husband. The said amount ought to have been added in the income of the accused- revisionist, which has not been done. Non-giving of information with respect to the said income to the Vidhan Sabha Adhyaksha may be violation of the rules, in respect to which action may be taken under appropriate provision, but the said income cannot be ignored from being taken into consideration. Therefore, if both the above mentioned incomes be added to the total income of the revisionist that would stand at Rs. 1,17,15,000/-. Further, it is mentioned that the marriage of the daughter of the revisionist namely, Pragya Tripathi was performed on 22.02.2008 in which the expenditure incurred has been shown by the Investigating Officer on the basis of conjecture but the same has not been added under the head of expenditure as in usual in every marriage, gifts are given and for that the register pertaining to gift received was also checked by the Investigating Officer, which contained lot of amount given by various persons, when same is added, it came to Rs. 11,00,850/- but the said amount has not been added in the income of the revisionist. 11,00,850/- but the said amount has not been added in the income of the revisionist. Further, it is mentioned that the Investigating Officer has mentioned in evidence that Smt. Pramila Tripathi wife of the accused-revisionist had given her house No. 2-A, Kapoor Road, Allahabad on rent to one Pradeep Srivastava on 1.10.2009 and House No. 2, Block ‘C’ Tulsiani Enclave, Allahabad was given to Ratan Singh from 16.12.2009 and Plot No. 1/67, Ruchi Khand, Gomti Nagar, Lucknow was given on rent to Mohd. Shami since 01.01.2003. On the basis of documentary evidence and the agreement executed, during the check period, total amount of rent received stood at Rs. 1,69,200.00 + Rs. 3,54,888.00 + Rs. 1,94,400.00, i.e total Rs. 7,18,488/- while on the basis of oral evidence of the owner and the tenants of the said property, the said amount comes to Rs. 7,66,400/-. This amount has not been added in the income of the revisionist and has been ignored by saying that about this no information was given which has been mentioned in Enquiry report (PDR) at page-40 of the case diary, paper no. 95K/191. Further, it is mentioned that the daughter of the revisionist namely, Pallavi Tripathi had paid income tax in the year 2008-09 to the tune of Rs. 4460/- in the year 2009-2010 Rs. 32600/- and in the year 2010-11 to the tune of Rs. 1,52,700/ and in the same year 2010-11 she also paid Rs. 9089/- therefore, total amount paid as income tax was Rs. 1,89,509/- the said amount has been shown in the expenditure but the amount in respect of which the said income tax was paid i.e. Rs. 5,70,350/- was not added in the income of the revisionist, which ought to have been done. Further, it is mentioned that if the entire amount mentioned in the above three heads, which comes to Rs. 24,37,600/- which if be added to the amount given in paragraph no. 6 i.e. Rs. 1,17,15,000/- the total amount/income would be Rs. 1,41,52,600/-, which is more than the disproportionate expenditure shown of Rs. 1,35,38,351.60. Thus, in comparison to the income, the expenditure is not on the higher side and therefore, no offence under section 13 (1) (e) and 13 (2) of P.C. Act is made out prima-facie against the revisionist, therefore, the accused- revisionist deserves to be discharged. 5. 1,41,52,600/-, which is more than the disproportionate expenditure shown of Rs. 1,35,38,351.60. Thus, in comparison to the income, the expenditure is not on the higher side and therefore, no offence under section 13 (1) (e) and 13 (2) of P.C. Act is made out prima-facie against the revisionist, therefore, the accused- revisionist deserves to be discharged. 5. The said application was moved before the trial court, whereon the trial court has passed the impugned dated 03.08.2019 mentioning therein that after perusal of the file, it transpired that the Investigating Officer had submitted charge-sheet against the accused-revisionist under section 13 (1) (e) and 13 (2) of the P.C. Act on which cognizance was taken by the Court on 12.4.2016. It also transpires that as per prosecution version, against the revisionist, an FIR was got registered by Ram Subhag Ram, Inspector, U.P. Vigilance Establishment, Allahabad. In investigation, it was found that the revisionist while holding the post of Education Minister in State of U.P. had total income from all known sources to the tune of Rs. 49,49,928/- and during the same period, he had purchased properties and spent money to the tune of Rs. 2,67,08,605/-. Thus during the check period, the revisionist had spent Rs. 2,17,58,677/- more than of his known sources of income, no plausible explanation could be given by the revisionist in respect of the same and hence he was prima-facie found guilty of owning assets disproportionate to his known sources of his income. On the basis of the said fact, a case under section 13 (1) e) and 13 (2) of P.C. Act was registered at P.S. Mutthiganj on 18.6.2013 and the investigation thereof was assigned to Vigilance Establishment, Varanasi, which was conducted by Inspector Bharat Ratna Varshney, who collected evidence in this matter. After retirement of Sri Varshney on 03.09.2015, further investigation was conducted by Inspector Prakash Singh and having found sufficient evidence against the revisionist, he has submitted charge-sheet against him on 14.3.2016 under section 13 (1) (e) and 13 (2) of P.C. Act which was forwarded to the Court by the then S.P. Sri Ram Pal Gautam of Vigilance Establishment, whereon the then Presiding Officer/Special Judge (Prevention of Corruption Act), Varanasi took cognizance on 12.4.2016 and issued summons against the accused on 14.11.2016. The revisionist appeared before the Court and moved bail application which was rejected and was sent to jail. The revisionist appeared before the Court and moved bail application which was rejected and was sent to jail. Thereafter, the revisionist approached High Court by filing Bail Application No. 42237 of 2016 which was allowed vide order dated 18.1.2017 conditionally and was released from jail on 19.1.2017. 6. Further, it is mentioned in the said order that in the meantime after cognizance having been taken on the charge-sheet and during hearing of the matter, a report was sent to the Court at the time when discharge/charge stage was there in the case by Hawaldar Singh Yadav, Inspector, Vigilance Establishment to the effect that a representation was moved by the revisionist before the Government on 30.08.2017 praying therein that further investigation may be got done on several points, based on that, Vigilance Department IV of State of U.P. passed an order on 7.5.2018 for further investigation to be conducted in this matter under section 173 (8) Cr.P.C., in reference to which a prayer was made before the Special Judge (Prevention of Corruption Act) to grant permission. By further investigation, during the check period (May 2007 to 31.12.2011) property earned worth Rs. 1,11,94,402/- and the expenditure worth Rs. 62,76,174/-thus total expenditure during check period was found to be 1,74,70,576/- and during this period income was found to be Rs.1,68,23,615 which was Rs. 6,46,961/- more than the income, which in terms of percentage is 3.845% i.e 4% more while as per Hon'ble Supreme Court there was exemption to the extent of 10% and hence offence under section 13 (1) (e) and 13 (2) of P.C. Act would not be made out. The said report was forwarded by S.P., U.P. Vigilance Department, Shailendra Kumar Yadav on 30.3.2019. Further it is recorded in the impugned order that it is apparent from the said report that by supplementary report filed from the side of prosecution, the revisionist was found to have spent only Rs. 6,46,961/- more than his income which was approximately 4% more and hence in view of the judgment of Hon'ble Supreme Court which provided exemption upto 10%, no offence would be found to be made out against the revisionist. 6,46,961/- more than his income which was approximately 4% more and hence in view of the judgment of Hon'ble Supreme Court which provided exemption upto 10%, no offence would be found to be made out against the revisionist. The trial court has recorded that at the stage of framing charge, there was no necessity to make any in-depth appreciation of the evidence provided and only prima-facie evidence is to be seen as to whether the same was sufficient for framing of charge or not. Large number of citations have been relied upon by the trial court in the impugned judgment and has opined that he is of the view that there was sufficient evidence against the accused-revisionist to frame charge under section 13 (1) (e) and 13 (2) of the P.C. Act and accordingly dismissed the discharge application of the revisionist. 7. I would like to rely upon the judgment rendered in Vinay Tyagi vs. Irshad Ali, (2013) 5 SCC 762 , which too has been relied upon by the learned counsel for the revisionist. There were two questions framed for consideration in this case which are as follows:- Question 1 1.1. Whether in exercise of its powers under Section 173 of the Code of Criminal Procedure, 1973 (for short “the Code”), the trial court has the jurisdiction to ignore any one of the reports, where there are two reports by the same or different investigating agencies in furtherance of the orders of a court? If so, to what effect? Question 2 1.2. Whether the Central Bureau of Investigation (for short “CBI”) is empowered to conduct “fresh” and ”reinvestigation” when the cognizance has already been taken by the court of competent jurisdiction on the basis of a police report under Section 173 of the Code? 8. Answer to the above questions has been given in paragraph nos. 53 and 54 of the said judgment, which are as follows:- “53. The court of competent jurisdiction is duty-bound to consider all reports, entire records and documents submitted therewith by the investigating agency as its report in terms of Section 173(2) of the Code. This rule is subject to only the following exceptions: (a) Where a specific order has been passed by the learned Magistrate at the request of the prosecution limited to exclude any document or statement or any part thereof. This rule is subject to only the following exceptions: (a) Where a specific order has been passed by the learned Magistrate at the request of the prosecution limited to exclude any document or statement or any part thereof. (b) Where an order is passed by the higher courts in exercise of its extraordinary or inherent jurisdiction directing that any of the reports i.e. primary report, supplementary report or the report submitted on “fresh investigation” or “reinvestigation” or any part of it be excluded, struck off the court record and be treated as non est.” “54. No investigating agency is empowered to conduct a “fresh” and “de novo” or “reinvestigation” in relation to the offence for which it has already filed a report in terms of Section 173(2) of the Code. It is only upon the orders of the higher courts empowered to pass such orders that aforesaid investigation can be conducted, in which event the higher courts will have to pass a specific order with regard to the fate of the investigation already conducted and the report so filed before the court of the learned Magistrate.” 9. It is apparent from the above position of law that in case there come on record several reports from the side of prosecution by way of supplementary report under section 173 (8) Cr.P.C. all these reports need to be taken into consideration by the trial court at the time of trial which include framing of charge. It is also apparent that earlier report filed from the side of prosecution, which holds the accused prima-facie guilty, cannot be ignored unless further investigation has been directed to be made by higher Court such as High Court and Hon’ble Supreme Court to that effect. In the case at hand, it is apparent that further investigation had been conducted at the instance of the accused-revisionist and after such further investigation made into the matter, an exoneration report has been filed in favour of the accused from the side of the prosecution, which has been ignored by the trial court and has come to the conclusion that there is sufficient evidence on record to frame the charge against the accused-revisionist under the above-mentioned sections. I do not find infirmity in the said order particularly keeping in view that in the initial report submitted from the side of the prosecution incriminating material was gathered against the accused-revisionist but in subsequent supplementary report it is being submitted from the side of the prosecution that there was some calculation mistake as several incomes and expenditures were omitted from being taken into consideration while submitting the first report. But keeping in view the position of law that the earlier report cannot be ignored altogether unless there is an order to that effect of any higher Court such as High Court or Hon’ble Supreme Court, therefore, the trial court appears to have been guided by the principle that there is one report on record in favour of the accused while there is another report also going against him, in such a situation, which of the two reports should be relied upon is the subject matter of evidence and therefore, holding that there is sufficient evidence prima-facie against the accused-revisionist, does not appears to be a wrong view. Here there is also not the case that prosecution has obtained any order to get the first report to be over looked/excluded. 10. I would also like to cite case laws of Hon’ble Supreme Court with respect to the position of law relating to framing of charge/discharge, which are as follows: “1. Mauvin Godinho vs. State of Goa, (2018) 3 SCC 358 , Paragraph no. 12 of which is as follows: 12. At the outset it would be pertinent to note the law concerning the framing of charges and the standard which courts must apply while framing charges. It is well settled that a court while framing charges under Section 227 of the Code of Criminal Procedure should apply the prima facie standard. Although the application of this standard depends on facts and circumstance in each case, a prima facie case against the accused is said to be made out when the probative value of the evidence on all the essential elements in the charge taken as a whole is such that it is sufficient to induce the court to believe in the existence of the facts pertaining to such essential elements or to consider its existence so probable that a prudent man ought to act upon the supposition that those facts existed or did happen. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. Sajjan Kumar vs. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371, State vs. A. Arun Kumar, (2015) 2 SCC 417 : (2015) 2 SCC (Cri) 96 : (2015) 1 SCC (L&S) 505 and State vs. S. Selvi, (2018) 4 SCC 641 : (2018) 1 Scale 5 . “2. State of M.P. vs. Rakesh Mishra, (2015) 13 SCC 8 , Paragraph no. 7 of which is as follows: 7. The major argument advanced by the State of Madhya Pradesh before us has been that the High Court traversed beyond the permissible limit while deciding the legality of order framing charges, being a pre-trial stage. Various authorities have been cited before us to prove that point. However, it would suffice to say that the law on this point is crystal clear that only charge-sheet along with the accompanying material is to be considered at the stage of framing of charges, so as to satisfy whether a prima facie case is made out. It has to be the subjective satisfaction of the court framing charges. In our opinion, the High Court has only examined the material before it against the prevailing law to reach its conclusions. Thus, the impugned judgment may not be assailable on this ground.” 11. In the case of Amit Kapoor vs. Ram Chandra, (2012) 9 SCC 460 , Supreme Court has held that even in the case of strong doubt, charge can be framed. Para no. 19 of the said judgment is quoted as under: “At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage.” 12. In view of above position of law, it is apparent that if there is even serious doubt about the accused being involved in commission of offence that would be sufficient to frame charge against the accused. The final test of guilt is not to be applied at that stage.” 12. In view of above position of law, it is apparent that if there is even serious doubt about the accused being involved in commission of offence that would be sufficient to frame charge against the accused. In the present case, there being two reports on record one exonerating the accused while other being inculpatory report against him, makes it a doubtful case which would certainly require a charge to be framed against the accused-revisionist. 13. From the side of the learned counsel for the revisionist reliance has been placed on the judgment of Hon'ble Supreme Court rendered in Krishnanand Agnihotri vs. State of Madhya Pradesh, 1976 Law Suit (SC) 504, paragraph no. 33 of which is as follows: “It will, therefore, be seen that as against an aggregate surplus income of Rs. 44,383.59 which was available to the appellant during the period in question, the appellant possessed total assets worth Rs. 55,732.25, the assets possessed by the appellant were thus in excess of he surplus income available to him, but since the excess is comparatively small, it is less than ten per cent of the total income of Rs. 1,27,715.43, we do not think it would be right to hold that the assets found in the possession of the appellant were disproportionate to this known sources of income so as to justify the raising of the presumption under sub-section (3) of section 5. We are of the view that on the facts of the present case the High Court as well as the Special Judge were in error in raising the presumption contained in sub-section (3) of section 5 and convicting the appellant on the basis of such presumption.” 14. By relying upon the above citation, much stress has been laid by the learned counsel for the revisionist that since difference of income and expenditure has been bridged to a great extent and the same has come to be below 4% while as per the law laid-down in the above mentioned case the difference of upto 10% would be condonable and in view of that there was no reason for the accused to face trial. I do not agree with the said argument because the judgment which has been relied upon has been passed in appeal after full consideration of the evidence which had been brought on record while in the present case, it is elementary stage of the case when charges are yet to be framed. Moreover, I am of the view that there being two contradictory reports of the Investigating agency, it would be appropriate to frame charge against the accused revisionist in this case to reach the truth. 15. Accordingly, I do not find any infirmity in the impugned judgment. This revision deserves to be dismissed and is accordingly dismissed.