KANCHAN KUMAR v. THE STATE OF BIHAR

[B. R. GAVAI AND PAMIDIGHANTAM SRI NARASIMHA, JJ.] Code of Criminal Procedure, 1973 – ss.227, 228 – Discharge application – Requirement of prime facie case for framing of charges – FIR filed against appellant under ss.13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988, alleging that he possessed assets disproportionate to his known source of income – Charge-sheet filed against him indicated that he earned a total income of Rs. 3,01,561 and incurred an expenditure of Rs. 5,24,386 during the check period – Thus, charge was of having amassed Rs. 2,22,825, disproportionate to his known sources of income – Appellant filed discharge application before the Special Judge alleging that there were glaring errors in the calculation – Application was summarily dismissed – High Court dismissed the revision application while observing that the contention raised by the appellant needed proper verification attracting roving enquiry which could be permissible only during course of trial – On appeal, held: The threshold of scrutiny required to adjudicate a discharge application under s.227 is to consider the broad probabilities of the case and the total effect of the material on record, including examination of any infirmities appearing in the case – Expenditure amount of Rs. 5,24,386 as alleged in the charge-sheet is based on certain mistakes – Total expenditure was only Rs. 2,69,355 and not Rs. 5,24,386 – It was this expenditure of Rs. 2,69,355 which was contrasted with the income of Rs. 3,01,561 during the check period – This simple and necessary inquiry for a proper adjudication of an application for discharge clearly demonstrated that there was no prima facie case made out by the prosecution in the case – Moreover, considering the delay involved in the case, the continuation of prosecution would also be unjust. 188 KANCHAN KUMAR v. THE STATE OF BIHAR 189 Allowing the appeal, the Court HELD :

The threshold of scrutiny required to adjudicate an application under Section 227 of the Cr.P.C., is to consider the broad probabilities of the case and the total effect of the material on record, including examination of any infirmities appearing in the case. [Para 13][195-B-C]

2.1 It is appropriate and in fact sufficient to confine inquiry to three heads of expenditure indicated in the chargesheet itself. This limited inquiry will also satisfy the requirements of Section 227 of the Cr.P.C. [ Para 16.1][197-D-E]

2.2 The first objection pertains to the inclusion an amount of Rs. 55,000, recorded as the balance amount in the Appellant’s bank account during the check period, and accordingly counted as expenditure in the charge sheet. However, the Bank Passbook filed by the Appellant, which was available to the Investigation Officer and the Special Judge (Vigilance), evidently records a balance amount of only Rs. 11,998 during the checkperiod. The difference in the figures was not explained by the Prosecution. Accordingly, the Special Judge (Vigilance) and the High Court failed to reconcile such a simple and straightforward inconsistency in the Prosecution’s evidence. [Para 16.2][197-E-G]

2.3 The second objection relates to the inclusion of an amount of Rs. 53,467 as expenditure towards repayment of the loan from the BSFC. However, the amount repaid towards loan instalments was already deducted from Appellant’s gross salary, and the deducted figure was recorded as the total disposable income with the Appellant during the check period. Hence, the loan repayment cannot be separately counted as an expenditure yet again. This is a glaring mistake. [Para 16.3][197-H; 198-A-B]

2.4 The third objection relates to the inclusion of Rs. 1,58,562 as the value of the articles found during a search conducted in Appellant’s house on 21.02.2000, twelve years after the check period of 1974 to 1988. There is nothing to indicate, even prima facie, that these articles found during the search in A B C D E F G H 190 SUPREME COURT REPORTS [2022] 16 S.C.R. the year 2000 were acquired during the check period. In the absence of any material to link these articles as having been acquired during the check period, it is impermissible to include their value in the expenditure. Appellant’s objection about inclusion of this amount in the list of expenditure is fully justified [Para 16.4][198-B-D]

The three heads of expenditure must be excluded from Appellant’s total alleged expenditure during the check period. Accordingly, the total expenditure comes only to Rs. 2,69,355, and not Rs. 5,24,386, which is based on certain mistakes. It is this expenditure of Rs. 2,69,355 which is to be contrasted with the income of Rs. 3,01,561 during the checkperiod. These facts clearly demonstrate that there is no prima facie case made out by the prosecution and therefore the Appellant was entitled to be discharged. [Para 17][1968-E-F]

The allegation relating to Appellant’s disproportionate income in the period between 1974 and 1988 was levelled in an FIR filed twelve years after the said period concluded. The chargesheet came to be filed seven years after the registration of the FIR. The application for discharge came to be dismissed on 28.03.2016, almost after a decade of filing of the charge sheet. The dismissal was affirmed by the High Court seven months thereafter, i.e., on 05.10.2016. Finally, and most unfortunately, the present SLP has been pending before this Court for the last six years. In the meanwhile, the Appellant superannuated from service in 2010, but had no option except to contest the case. He is now 72 years. Continuation of the prosecution, apart from the illegality would also be unjust. [Para 19][198-G-H; 199-A-B]