High Court
Case Details
Crl.A. 89/2012 BEFORE HON’BLE JUSTICE DR. (MRS.) INDIRA SHAH JUDGMENT AND ORDER (CAV) This is an appeal against the judgment and order dated 30-05-2012, passed by the learned Special Judge, C.B.I., Assam in Special Case No. 01/2005, convicting the accused appellant under Section 13(2) read with Section 13(1) (e ) of the Prevention of Corruption Act, 1988 (’PC Act’, in short) and sentencing him thereby to undergo rigorous imprisonment for 4 years with fine of Rs.5,000/ - in default of payment of fine, further rigorous imprisonment for one month. 2].
Legal Reasoning
(cid:28)13. Provisions of the 1988 Act, no doubt, like the 1947 Act seek to protect public servant from vexatious prosecution. Section 17 provides for investigati on by a person authorized in this behalf. The said provision contains a non obs tante clause. It makes investigation only by police officers of the ranks specif ied herein to be imperative in character. The second proviso appended to Section 17 of the Act provides that an offence referred to in clause (e) of sub-section (1) of Section 13, shall not be investigated without the order of a police offi cer not below the rank of a Superintendent of Police. Authorization by a Superin tendent of Police in favour of an officer so as to enable him to carry out inves tigation in terms of Section 17 of the Act is a statutory one. The power to gran t such sanction has been conferred upon the authorities not below the rank of a Superintendent of Police. The proviso uses a negative expression. It also uses t he expression (cid:28)shall:, Ex facie it is mandatory in character. When the authority of a person to carry out investigation is questioned on the ground that he did not fulfil the statutory requirements laid down therefor in terms of the second proviso, the burden, undoubtedly, was on the prosecution to prove the same & & (cid:29) 8]. It is submitted by the learned Standing Counsel, CBI that as per Section 17 of the PC Act, an Inspector of Police can investigate the case in the case o f Delhi Special Police Establishment, the appellant was an employee in the depar tment of Regional Passport Office, so, there was no question of authorization by the State Government as contained in sub-clause (a) of Section 17 of the PC Act . The second proviso to Section 17 states that an offence referred to in clause (e) of sub-section (1) of Section 13 shall not be investigated without the orde r of a police officer not below the rank of a Superintendent of Police. There is nothing on record to show that the Inspector was authorized by the Superintende nt of Police to conduct the investigation. It is clear from the proviso to Secti on 17 that an offence referred to in clause (e) of Section (1) of Section 13 sha ll not be investigated without the order of a police officer not below the rank of a Superintendent of Police. 9]. The salary statement of the accused from 12-06-1985 to 04-08-1985 and 04 -08-1985 to 16-05-1990 to 2002 was exhibited vide Ext. 84 and Ext. 85 through Am al Ch. Biswas (PW.10). His salary statement from 1990 to 2002 was also exhibite d vide Ext. 86 to 98. The total amount received as salary during the said perio d was Rs.7,14,177/-. The loan amount of Rs.1,00,000/-, which was sanctioned in t he name of the accused, on 22-11-1997 was exhibited through Area Manager, LIC Ho using Finance Ltd. (PW.2). As per the evidence of PW.2, till 08-08-2002, the ac cused repaid Rs.64,533.27 as interest and Rs.10,853.33 against the principal amo unt. Again on 10-12-1998, loan amount to the tune of Rs.50,000/- was sanctioned to the accused, which was paid by him in two installments. Accused paid Rs.11, 156.88 as interest and Rs.50,000/- as principal amount. Thus, he availed two ho using loan amount of Rs.1,50,000/- against which he made payment of Rs.1,36,543. 48. The amount remained with the accused out of the loan amount was thus Rs.13, 456.52. Therefore, the total income of the accused appellant during the check p eriod was Rs.7,27,633.52. 10]. PW.4, Sri Sarbananda Das, Administrative Officer, LICI, Branch-II, Silpu khuri, Guwahati, has stated that the insurance policy of the accused issued on 2 8-11-1993 for sum assured Rs.1,00,000/- with half yearly premium of Rs.2797/- an d as per his evidence and Ext. 13 (status report), the accused had paid an amoun t of Rs.50,346/- towards the premium till 08-08-2002. Another LIC Policy of the accused for the sum assured of Rs.1,50,000/- with yearly premium of Rs.10,297/- was exhibited through PW.5 Smti Indrani Das. For the said LIC Policy, the accu sed had paid Rs.20,594/- as premium till 08-08-2002. One more LIC Policy of the accused was exhibited through PW.36, Sri Birendra Kumar Das, in which, the accu sed had paid Rs.20,572.50 as premium of the said policy. Thus, the total amount of Rs.91,512.50 was paid by the accused against the LIC Policies in his name du ring the check period. Apart from investment in the LIC policies, the accused procured certific 11]. ates of Peerless General Finance and Investment Co. Pvt. Ltd. The accused appell ant has several accounts in the State Bank of India, Fixed deposit account, MMDC certificate, & Children gift growth fund scheme certificate in the name of his daughter. Altogether the assets acquired by the accused was calculated to the t une of Rs.3,33,104.82. The accused also acquired immovable property during the check period. The accused sold plots of land to PW.13 as well as PW.14 for an a mount of Rs.30,000/- and Rs.25,000/- respectively. He had constructed one double storied RCC building and one Assam Type building during his service. The valu e of the land and buildings were ascertained by Shri S.K. Dutta, Assistant Engin eer, Project Division-II, CPWD, Guwahati. The cost of RCC building was assessed at Rs.11,99,684/- as per Delhi Plinth Area Rate. The total costs of the buildi ngs were assessed at Rs.13,09,382/- and the value of the land was assessed at Rs .55,000/-. The value of the land was assessed as per Assam PWD rate excluding t he value of land and value of the building was assessed Rs.13,09,382/-. 12]. It is submitted by the learned counsel for the appellant that the value of the land and buildings were assessed as per Delhi Plinth Area Rate, whereas t he property is situated within Assam and therefore, the value as per Delhi Plint h Area Rate would not be applicable here. The expenditure incurred by the accuse d during the check period was also assessed. PW.16 exhibited the payment of elec tricity bills by the accused. By adducing evidence of PW.18, PW.21 and PW.38, t he expenditure incurred by the accused towards the studies of his children, the municipality tax paid by the accused, an scooter along with helmet purchased by him, registration of the vehicle, telephone bills, charges against the mobile ph ones, were all considered, which comes to Rs.1,11,142.38. The learned trial cou rt came to the finding that the total assets acquired by the accused during the check period comes to Rs.19,00,141.70. He received the salary during the check period to the tune of Rs.7,14,177/-. During that period the accused also availe d two loans from the LIC housing loan amounting to Rs.1,50,000/- out of which he repaid Rs.1,36,543.48. Therefore, an amount of Rs.13,456.52 remained with the accused and then total income of the accused during the check period comes to Rs .7,27,633.52 and this amount can be accepted as income of the accused from his known sources of income. The accused must have also incurred expenditure in main taining his family. Therefore, taking into account of 1/3 of his salary income as compulsory expenditure towards household maintenance of his family, thus, sav ings from his income will remain at Rs.4,76,188/- and in addition of remaining l oan amount of Rs.13,456.52, the total savings during the check period comes at R s.4,89,574.52 but his acquired assets during check period come to Rs.19,00,141.7 0 which is much more than 10% of his known sources of income. The accused neithe r adduced any evidence in his defense nor could demolish the evidence adduced by the prosecution witnesses, it was held by the trial Court. 13]. The cost of total plinth area of RCC double storied building was assesse d at Rs.11,996,84/- as per Delhi Plinth Area rate instead of Assam PWD rate. Th e price index of 1998 was taken into consideration for cost of land and building , whereas, the buildings were constructed in the year 1992. Therefore, there wa s no proper assessment of the cost of the buildings. 14]. Learned counsel for the appellant has submitted that there was no proper sanction for the prosecution and therefore conviction of the accused appellant is not sustainable in law. He stated that the sanctioning authority was not exa mined by the prosecution and therefore, the accused was prejudiced because he co uld not avail the opportunity of cross-examination of the sanctioning authority, which has caused miscarriage of justice, that apart, there was violation of Se ction 17 of the PC Act. 15]. In the case of Inspector of Police, Vishakhapatnam (supra), although the investigation was held by a person not authorized in law. In para 21 of the ju dgment, it was observed that only on the basis of illegal investigation, a proce eding may not be quashed unless miscarriage of justice is shown. 16]. It appears from the case records that the sanction for prosecution was e xhibited as Ext. 182 through the court witness, Ajoy Kumar. The contents of Ext . 182 clearly shows that the sanctioning authority on perusal of all materials p laced before him and after applying his mind, accorded the sanction for prosecu tion. In the cited case of State of Karnataka Vs. Ameerjan, reported in (2007) 11 SCC 273, the sanction was accorded sole on the basis of report made by IG Pol ice and the court held that the sanction was not proper. That apart, it was obs erved that if the amount involved relatively small, if it is a single isolated i nstance and there is no evidence of habitual bribe taking or assets disproportio nate to the known sources of income, that the sanctioning authority will have to carefully evaluate as to whether the interest of justice will not be adequately served by taking disciplinary action rather than by hardening the courts with f ull-fledged prosecution in a case of relatively trivial facts. The amount invol ved in the case was a sum of Rs.300/- only. 17]. For the reasons, as indicated above, this Court finds that the investiga tion of the case was not fair, not authorized to conduct. The Investigating Offi cer was not authorized in terms of proviso to Section 13 of the Act to investiga te the case for the offence committed under clause (e) of Section 13 of the Act and therefore, the conviction of accused under Section 13(1) (e) and sentence t
Arguments
Heard Mr. T. C. Chutia, learned counsel for the appellant as well as Mr. P.N.Choudhury, learned Standing Counsel appearing on behalf of the C.B.I. 3]. The appellant, herein, was a LDC and subsequently promoted as UDC in the office of the Regional Passport Officer, Guwahati, allegedly acquired assets to the tune of Rs.28,63,822/- (approx.) in the form of land, building, Maruti Car, costly household items, Investment Certificates etc. from 01-01-1990 onwards, w hich was grossly disproportionate to his known sources of income. The house of the accused appellant was searched on 08-08-2002 in connection with RC-15(A)/200 1-SHG against his known sources of income of Rs.7,23,032/-. After allowing the probable expenditure of Rs.2,41,010/- (approx.) and also probable savings of Rs. 53,176/- (approx.) prior to 01-01-1990 i.e. the beginning of the check period, t he appellant was found in possession of assets disproportionate to his known so urces of income to the tune of Rs.23,28,624/- (approx.) as on 08-08-2002. Hence , a case was registered and the Inspector of CBI, ACB, Guwahati, investigated th e case. 4]. On completion of investigation, charge sheet under Section 13(2) read w ith Section 13(1)(e) of PC Act was submitted against the accused appellant. The accused pleaded not guilty to the charge framed against him under Section 13(2) read with Section 13(1)(e) of PC Act and claimed to be tried. 5]. During investigation, the prosecution examined altogether 14 witnesses a nd exhibited 187 no. of documents in support of its case. One witness was examin ed as Court witness. Thereafter, statement of the accused under Section 313 Cr. P.C. was recorded, wherein, he denied the allegations levelled against him and pleaded that he is innocent. However, he declined to adduce any defence evidenc e. The learned Trial Court, on conclusion of the trial, held that the total sav ings of the accused during the check period from 01-01-1990 to 08-08-2002 was Rs .4,89,574.52 and after deducting of 1/3 of his total income as compulsory expend iture towards household maintenance of his family, the amount comes to Rs.4,76,1 18/-, on adding loan amount of Rs.13,456.52, the amount remain with the accused but he (accused) acquired assets during that period to the tune of Rs.19,00,141. 70. The accused failed to prove that the assets found was not disproportionate t o his known sources of income. Therefore, the value of assets both movable and i mmovable acquired by the accused within the check period was more than 10% of hi s known sources of income and as such, it is disproportionate to his income. Acc ordingly, he was held guilty under Section under Section 13(2) read with Section 13(1)(e) of PC Act. 6]. It is submitted by the learned counsel for the appellant that the learne d trial court considered the income of the appellant during the check period fro m 01-01-1990 to 08-08-2002 whereas, the appellant was in service with effect fro m 01-06-1985, his income from 01-06-1985 prior to 01-01-1990 was not considered. Had the income of the appellant been taken into account from the date of joini ng of his service, the alleged acquisition of properties by the appellant, would not have been disproportionate to his known sources of income. That apart, the income of his wife was not considered along with the income of the accused appe llant. The value of the property of the appellant was also not properly assesse d. The provisions of Section 17 of the PC Act was violated as the investigation of the case was done by the Inspector of Police, CBI, ACB and the charge sheet was also submitted by another Inspector of Police, CBI whereas Section 17 of the PC Act stipulates that the investigation must be done by a Deputy Superintenden t of Police (DSP) or by a Police Officer of equivalent rank. 7]. It was submitted that the sanctioning authority was not examined by the prosecution. In support of his submissions, learned counsel relied upon the ca se of State Inspector of Police, Vishakhapatnam Vs. Surya Sankaram Karri, report ed in (2006) 7 SCC 172, wherein in para 13, it was held as under:-
Decision
hereupon are liable to be set aside. Accordingly, it is set aside. The appeal is allowed. The conviction of the accused appellant under Sec 18]. tion 13(1) (e) is set aside and he is acquitted and set at liberty forthwith, if he is not wanted in any other case. 19]. udgment and order. Send back the LCRs to the learned court below along with a copy of the j