A.Viswanathan v. State byDeputy Superintendent of PoliceVigilance and AnticorruptionCuddalore

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 05.06.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCRL.R.C.Nos.1967 & 1968 of 2003andCrl.M.P.Nos.12969 &12970 of 2003A.Viswanathan.. Petitioner in both revisions/Accused-vs-State byDeputy Superintendent of PoliceVigilance and AnticorruptionCuddalore. .. Respondent in both revisions/ComplainantThese Revisions are filed under Section 397 r/w 401Cr.P.C. against the order passed in Crl.M.P.No.601/2003 inS.C.No.4/2001 and Crl.M.P.No.998 of 2002 in S.C.No.5 of 2001respectively dated 18.12.2003 on the file of Chief JudicialMagistrate(Special Judge)Cuddalore.For petitioner : : Mr.M.V.KarunakaranFor respondent : : Mr.V.R.Balasubramanian Additional Public Prosecutor C O M M O N O R D E R The accused in S.C.No.4 of 2001 on the file of the ChiefJudicial Magistrate(Special Judge) Cuddalore, who is also theaccused in S.C.No.5 of 2001 on the file of the same learnedJudge, filed an application under Section 300 of Cr.P.C. andalso under Article 20(2) of the Constitution of India, todischarge him from the charges levelled against him.2. According to the petitioner/accused in an earlier casein S.C.No.3 of 1999, he was charged for an offence underSection 13(1)(e) r/w 13(2) of Prevention of Corruption Act1988(hereinafter referred to as "Act") on the ground that hehad amassed wealth of Rs.14,86,461/- which is disproportionate https://hcservices.ecourts.gov.in/hcservices/ to his own income for the period from 1.1.1990 to 31.8.1996.According to the petitioner/accused in S.C.No.4 of 2001, he hasonce again been charged under Section 13(1)(a) r/w 13(2) of thesaid Act on the ground that he has received a sum ofRs.24,350/- by way of illegal gratification to sanction theelectricity connection to fifteen persons for the period from28.7.1993 to 15.6.1996. According to the petitioner/accused hehas already been convicted in S.C.No.3 of 1999 for the chargeslevelled against him.3. The learned counsel appearing for the revisionpetitioner would contend that Section 13(1) and its subclauses of the said Act would mainly concern with the offencecoming under misconduct and hence he cannot be convicted ortried once again under the same category of an offence in whichhe has already been convicted in S.C.No.3 of 1999.4. Admittedly, an offence under Section 13(1)(a) of thesaid Act is entirely different from Section 13(1)(e) of thesaid Act. A specific charge under Section 13(i)(e) of the saidAct against the accused is that he has amassed wealth to thetune of Rs.14,86,461/- during the period from 1.1.1990 to31.8.1996 and the said income is disproportionate to his ownsource of income, he has earned as a Government Servant. Thatis why the accused was charged under S.C.NO.3 of 1999. In thesaid case, after the trial, he was convicted whereas underS.C.No.4 of 2001, the accused is facing a charge under Section13(i)(a) r/w Section 13(2) of the said Act. The specificallegation is that he has demanded bribe from fifteen personsto the tune of Rs.24,350/- during the period from 28.7.1993 to15.6.1996 for sanctioning the electricity connection to them.The learned counsel would admit that in the charges levelledagainst him in S.C.No.3 of 1999, it is not specifically statedthat he has received a sum of Rs.24,350/- from fifteen personsduring the period from 28.7.1993 to 15.6.1996. Even though therelevant period in S.C.No.3 of 1999 is from 1.1.1990 to31.8.1996, the ill-gotten amount of Rs.24,350/- is not thesubject matter in S.C.No.3 of 1999 under which the chargeslevelled against the accused is under Section 13(i) (e) r/w 13(2) of the said Act. So the contention of the learned counselappearing for the revision petitioner that the accused who hasalready been tried and convicted under Section 13(1)(e) r/w 13(2) of the said Act cannot be tried once again in S.C.No. 4 of2001 under Section 13(i)(a) r/w 13(2) of the said Act holds nowater. The learned trial Judge has discussed all these pointsand has come to a correct conclusion that the revisionpetitioner cannot take shelter under Section 300 of Cr.P.C.5. Even the petitioner has mentioned in Crl.M.P.No.601 of https://hcservices.ecourts.gov.in/hcservices/ 2003 in S.C.No.4 of 2001 that he has filed an applicationunder Section 300 of Cr.P.C. as well as under Article 20(2) ofConstitution of India, the trial Court is not empowered to giveany finding under Article 20(2) of Constitution of India.Admittedly, the petitioner has not challenged themaintainability of the complaint preferred by the prosecutionbefore this Court. Against the first limb of argument raised bythe learned counsel appearing for the revisionpetitioner/accused that the complaint is not maintainable underSection 300 of Cr.P.C.is not sustainable .6. The other limb of argument advanced by the learnedcounsel appearing for the revision petitioner/accused is thatthe Investigating Officer Mr.R.Dhakshanamurthy is the person,who had registered the first information report and that he isnot a competent authority to investigate the same. In supportof his contention, the learned counsel appearing for therevision petitioner/accused would rely on the followingdecisions.(a) Bhagawan singh -vs- State of Rajasthan(AIR 1976 SC ,985)(b) Singaravelu-vs- State (1985 L.W.(Crl)336)(c)Gyan Chand vs State of Rajasthan(1993Crl.L.J.,3716)(d)State-vs- Krishnasamy Iyer ( 1997-2L.W.Crl.751)(E)S.Chandran-VS-State (2001 (1) L.W.Crl.,230).In the above said ratios, it has been held that a person whohad registered the case is not competent to investigate thesame. To answer this, the learned Additional Public Prosecutorwould contend, relying on a decision reported in Ratilal BhanjiMithani-v- State of Maharashtra(AIR 1979 Supreme Court 94) thatonce charge has been framed in a criminal proceedings then theMagistrate cannot discharge the accused under anycircumstances. Both Crl.M.P.No.601 of 2003 in S.C.No.4 of 2001and Crl.M.P.No.998 of 2002 in S.C.No.5 of 2001 were filed underSection 300 of Cr.P.C. and under Article 20(2) of Constitutionof India. In Crl.M.P.No.998 of 2002 alone, the accused hasstated that he has filed a petition under Section 239 ofCr.P.C. also which cannot be maintainable after framing ofcharges. The learned trial Judge has discussed all the pointsraised by the learned advocate before him and has come to acorrect conclusion that the accused is not entitled to anyrelief under those petitions. Hence I do not find any https://hcservices.ecourts.gov.in/hcservices/ illegality or infirmity in the order passed by the learnedtrial Judge to warrant any interference from this Court. As Ihave already observed in this order that the accused/revisionpetitioner has not challenged the maintainability of thecomplaint before this Court at any point of time. 7.Under such circumstances, I do not find any reason tointerfere with the well considered order of the learned ChiefJudicial Magistrate(Special Judge) Cuddalore in Crl.MP.No.601of 2003 in S.C.No. 4 of 2001 and Crl.M.P.No.998 of 2002 inS.C.No.5 of 2001 dated 18.12.2003.8. In fine, these revisions are dismissed confirming theorder passed by the learned Chief Judicial Magistrate(SpecialJudge) Cuddalore in Crl.M.P.No.601 of 2003 in S.C.No.4 of 2001and Crl.M.P.No.998 of 2002 in S.C.No.5 of 2001 dated 18.12.2003respectively. Consequently, connected Crl.M.P.Nos.12969 and12970 of 2003 are also dismissed.9.The learned trial Judge is directed to proceed with thetrial in S.C.No.4 of 2001 and S.C.No.5 of 2001 and dispose ofthe same within a period of three months from the date ofreceipt of a copy of this order. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarsgTo1. The Chief Judicial Magistrate(Special Judge)Cuddalore.2. The Deputy Superintendent of Police, Vigilance and Anti-corruption , Cuddalore.3. The Public Prosecutor, High Court, Madras+1cc to Mr.M.V.Karunakaran, Advocate Sr 31837KLT (CO)km/12.6.Crl.R.C.Nos.1967 & 1968 of 2003