Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.8953 of 2013 ====================================================== Ratna Ganguly @ Ratna Arun, W/O Sh. Rajni Kant Arun, Resident of New Pataliputra Colony Patna, P.S.- Pataliputra, Town and District- Patna The State Of Bihar through Vigilance Investigation Bureau Versus .... .... Petitioner/s .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mrs. Soni Shrivastav, Mr. Ravi Bhardwaj, Advocates. For the Vigilance : Mr. Santosh Kumar Pandey, AC to Mr. R.K. sharma, Sr.Advocate. Mr. Kedar Singh, AC to Viglance. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 5 23-07-2013 Heard learned counsel for the petitioner and learned counsel for the Vigilance. 2. This application has been filed for quashing the order dated 22.9.2012 passed by the Special Judge Vigilance Court-I, Patna in Special Case No. 28 of 2005 (Vigilance P.S. Case No. 16 of 2005) by which he has rejected the petition filed by the petitioner to discharge him from case of offence under Sections 13(2) read with Section 13(1) (e) of the Prevention of Corruption Act and Section 109 of the Indian Penal Code. 3. It appears from the record that an F.I.R. was instituted against the present petitioner and her son, namely, Amitav Arun. At the relevant time, Amitav Arun was holding the post of
Legal Reasoning
Patna High Court Cr.Misc. No.8953 of 2013 (5) dt.23-07-2013 2 Computer Programmer in the office of District Rural Development Agency, Patna whereas petitioner was an employee of Information and Public Relation Department. Allegation has been made that Rajni Kant Arun is the head of the family whereas present petitioner being his wife and other sons, namely, Amitav Arun, Sumitabh Arun and Ajitav Arun all members constitute joint Hindu family. Rajni Kant Arun has been employed since 1992 in the pay scale of Rs. 1320-2040 whereas present petitioner has been working since 1980 in the pay scale of Rs.230-340 whereas Amitav Arun the eldest son of the family was employed in consolidated salary of Rs.2000/-. 4. A raid was conducted in the house at Patliputra Colony and flat at Patel Nagar, huge property worth Rs.16,25,240/- was found. It was found that house no.337 at Road No.3(I), New Patliputra Colony was in the name of the petitioner and was acquired on total deed amount of Rs.10,03,957.62. Another flat was purchased at East Patelnagar for Rs.5,40,000/- in the name of the petitioner for which Rs.4,00,000/- was the loan taken from
Legal Reasoning
Allahabd Bank. It has further come in the light that Smt. Nupur wife of Amitav Arun was one of the Directors of Pashupati Cold Storgae and she had shares worth Rs.49,800/- whereas Amitav Arun had a Bank account of Rs.64,38,064/- and the same was Patna High Court Cr.Misc. No.8953 of 2013 (5) dt.23-07-2013 3 withdrawn by him. 5. The matter was investigated as Vigilance found sufficient material filed charge sheet against both the accused persons and court below has taken cognizance on the basis of the material on record. 6. An application for discharge was filed by the petitioner where the basic point has been made that while calculating disproportionate assets the basic fault has been committed by investigating agency as well as court ignoring to consider that all assets either movable or immovable were illegally shifted on the head of the petitioner whereas other family members were also earning family members left untouched. Further point has been taken that Amitav Arun before joining the job was in the trade of liquor in the year 1994 and had earned a substantial amount and that earning was not taken into consideration while arriving to the conclusion of disproportionate assets of the petitioner. He further submits that while passing the impugned order the basic calculation and the ground for discharge was not taken into consideration and the court below while arriving at conclusion of disproportionate assets of Rs. 31,69,197.62 should have first ought to have seen earning of each of the family member as those materials were available on record in the discharge application, Patna High Court Cr.Misc. No.8953 of 2013 (5) dt.23-07-2013 4 so arriving at the conclusion of disproportionate assets the court below has committed an error that earning of other family members were not taken into consideration. Earning of members were not taken into consideration and theory that has been applied for expenditure of one third is not a sound theory for arriving to a conclusion on saving of the petitioner. It has further been submitted that had the income of all family members would have been taken into consideration and assets would have taken into account then only the court could have come to the right conclusion of disproportionate assets. It has further been argued that documents filed before the court below were unimpeachable and the court below while passing the impugned order has not taken into consideration on those documents. It has further submitted daughter-in-laws received plenty of gift during marriage that has been shown assets of petitioner. In support of his contention he has relied on the judgment of the Hon’ble Supreme Court in the case of Harshendra Kumar D. Vs. Rebatilata Koley and others, reported in (2011) 3 SCC 3512. It has further been submitted that this Court in exercise of inherent jurisdiction can look into the material produced by the petitioner and if it is taken into consideration it would lead to the conclusion that her defence is Patna High Court Cr.Misc. No.8953 of 2013 (5) dt.23-07-2013 5 based on sound, reasonable and indubitable facts. The material produced is such as would rule out and display the assertions contained in the charges levelled against the accused. It has further been submitted that the court can exercise inherent power at the stage of taking cognizance, at the stage of commitment and at the stage of framing of charges as these stages are before commencement of trial. In support of his contention he has relied on the judgment of the Hon’ble Supreme Court in the case of Rajiv Thapar and others Vs. Madan Lal Kapoor, reported in (2013) 3 SCC 330, paragraph 29. The other point that was taken by the petitioner that while granting sanction the materials were not available before the sanctioning authority and sanctioning authority without examining the material for the purposes of granting sanction illegally granted sanction to prosecute the petitioner, so much so when the investigation was still pending. He further submits that while case was under investigation, an approval was sent for sanction and the sanctioning authority without waiting for final result of investigation, granted sanction which itself shows non-application of mind. 7. Learned counsel for the Vigilance has refuted the argument of learned counsel for the petitioner and has submitted that at the time of framing of charge strong suspicion is sufficient ground Patna High Court Cr.Misc. No.8953 of 2013 (5) dt.23-07-2013 6 for framing of charge and the allegation vis-à-vis materials which were recovered during course of investigation are sufficiently indicate strong suspicion against the petitioner for initiation of trial against her. It has further been submitted that at the stage of framing of charge or considering the discharge application and material collected during investigation the court found sufficient material for forming strong suspicion is sufficient for framing of charge, the Court is not required to see the defence of other side, that can be seen at the stage of trial. Reliance has been placed on the judgments of the Hon’ble Supreme Court in the case of State of Bihar V. Debendra Nath Padhi, reported in (2005)1 SCC 568 and P. Vijayan Vs. State of Kerala and another, reported in (2010) 2 SCC 398. In view of the aforesaid two judgments he submits that it cannot be said that the court has passed any wrong or illegal order. It has further been submitted that there is no bar to grant sanction by the sanctioning authority provided the materials are sufficient for forming an opinion to grant sanction and in the petition the petitioner has not pleaded the foundational fact with regard to wrong basis of granting sanction. 8. In reply learned counsel for the petitioner has submitted that if investigation was in progress itself shows that all materials were not placed and question of granting sanction does not arise Patna High Court Cr.Misc. No.8953 of 2013 (5) dt.23-07-2013 7 as the pendency of investigation itself shows that foundational fact was not available. 9. Having considered the rival contentions of learned counsel for the parties, the basic point that has been raise that the income of other family members has not been taken into consideration while arriving to the conclusion of disproportionate assets. In this case it is an admitted fact that huge property were recovered such as one house, one flat and both houses were loaded with different articles liquid clash which standing in the name of her son and it is undisputed fact that the flats are standing in the name of the petitioner. Her earning, earning of husband Amitav Arun and other family is not before this Court that will be brought during trial. Meticulous examination of materials is not applied at this stage even probative value evidence is not be taken consideration. Even if their earning is taken into consideration sufficiently creates strong suspicion for framing charge it appears that the court below had not committed any error in rejecting the petition. 10. So far method of calculation is concerned, the earning of other family members has not been take taken into consideration it will be seen only at the stage of trial as trial court will have an opportunity to examine the same. So far the certain properties Patna High Court Cr.Misc. No.8953 of 2013 (5) dt.23-07-2013 8 given as gift to the ladies member during their marriage will be seen not at the stage of discharge, that can only be seen at the stage of trial where every materials to be brought before the court and total income of the family members and their expenditure would be calculated. 11. So far applicability of the judgment with regard to unimpeachable document as has been claimed by the petitioner showing Annexures 7 and 8 claiming those documents are unimpeachable document is completely a misplaced as those documents have to be proved by competent witnesses of defence and it has to be co-related with the Bank accounts of the respective persons and as such the claim that the court below has not taken into consideration while passing the order is not correct proposition as has been raised by the petitioner. So far Rajiv Thapar (supra) case paragraph 29 of the judgment has reiterated the same principle as has been decided by the Hon’ble Supreme Court in the case of State of Haryana Vs. Bhajan Lal, reported in (1992) SCC (cri) 426 where the material of accusation are not sufficient vis-à-vis the defence is so strong in that circumstances the court can interfere with the order of cognizance or commitment order or at the stage of discharge. This Court is of the view that proposition formulated in paragraph 29 of the Patna High Court Cr.Misc. No.8953 of 2013 (5) dt.23-07-2013 9 judgment is not applicable to the present case. 12. So far sanction is concerned it is a mixed question of fact and law that cannot be decided at this stage in view of the fact that foundational fact is not available in the petition. However, the petitioner will be at liberty to raise this point at the stage of trial. 13. This Court does not find any merit in this application. It is accordingly dismissed. However, any observation given hereinabove is applicable to the present proceeding and it will not effect the out come of trial. Vinay/- (Shivaji Pandey, J)