The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.1388 of 2025 Suprava Paul …. Petitioner(s) Mr. L. Samantaray, Advocate -versus- State of Odisha (Vigilance) …. Opposite Party(s)
Legal Reasoning
Mr. N. Moharana, ASC (Vigilance) CORAM: JUSTICE SIBO SANKAR MISHRA Order No. 01. 1. 2.
Decision
ORDER 16.04.2025 Heard. The petitioner has been arrayed as an accused along with her husband namely Suranjan Kumar Paul in Balasore Vigilance P.S. Case No.30 of 2014 for the alleged commission of offences under Sections 13(2)/13(1)(e) of the P.C. Act read with Section 109 of the I.P.C. 3. The petitioner has been implicated in the present case under the aid of Section 107 of I.P.C. for the offence u/s 109 I.P.C. on the allegation that she has abetted her husband to commit the substantive crime. After investigation, charge-sheet has been filed in the present case on 30.06.2017. The only allegation which reveals from the charge-sheet is that the present petitioner has Page 1 of 8 abetted her husband for commission of offence. Except that there is no evidence coming forth to substantiate the case. Relevant would be to reproduce the part of the charge-sheet which discuss/ implicates the present petitioner:- the above calculations “From the accused Suranjan Kumar Paul is found in possession of assets of worth Rs.1,22,07,160/-, expenditure of Rs.27,03,884/- and income of Rs.44,52,913/- from all known sources. From this the disproportionate assets of the accused comes to Rs.1,09,58,131/- which he could satisfactorily not account for. His wife Smt. Suprava Paul abetted the commission of the offence by assisting Sri Paul to acquire the disproportionate assets. There is sufficient evidence both oral and documentary against the accd Sri Suranjan Kumar Paul, Sr. Accountant, office of the DM, OSCSC Ltd., Mayurbhanj, Baripada and his wife Smt. Suprava Paul to face prosecution u/s 13(2) r/w 13(1)(e) P.C. Act 1988/109 IPC. Sanction of prosecution has been obtained from the Managing Director, OSCSC Ltd., Bhubaneswar in respect of accused Suranjan Paul. As his wife Smt. Suprava Paul is a private person no sanction of prosecution is required in respect of her. As prima facie evidence U/s. 13(2) r/w 13(1)(e) P.C. Act 1988/109 found well established against accused Sri Suranjan Kumar Paul, Sr. Accountant, office of the DM, OSCSC Ltd., Mayurbhanj, Baripada and his wife Smt. Suprava Paul, I am submitting this C.S. vide Balasore Vigilance P.S. C.S. No.23 dt. 30.6.2017 U/s. 13(2) r/w 13(1)(e) P.C. Act 1988/109 IPC them to stand their trial in the court of law.” 4. It is admitted by the Investigating Agency that the present petitioner is not putting forth the specific defence of her own to Page 2 of 8 justify the disproportionate assets of her husband. She has stated that she has no income. She has also filed an affidavit before the Investigating Agency on 29.07.2016 inter alia stating as under:- “3. That, I voluntarily state that I had no knowledge about the sources of income of my husband (except the fact that he is serving in the Civil Supply Corporation in the office of the CSO, Baripada at present) and I had no knowledge about the quantum of income or amount of salary or any other sources of income of my husband as he had never given any such informant to me at any point of time. It is further stated that I have no knowledge about the filling of any Income Tax Return by my husband showing difference sources of income in my favour, except putting signature in good faith in the I.T. Return Form as per his direction, because of the fiduciary relationship exists between us. However, the alleged business in my name had been managed by my husband and he was also filing Income Tax Return for the said purpose in my name. in the of my husband 4. That, the immovable assets i.e., Plot Nos.821, 822 & 823 had been purchased by my husband in my name in the year 1996. I had only put my signature as per the required instructions papers/documents in the good faith, being his wife. Similarly, the deposits in Union Bank of India, fixed deposits and KVP deposits in the Post Office in my name have been made by my husband from his sources of income, to which he can better explain. I have no knowledge about the sources or funds from which he had made such assets and deposits in my name. I have never given any financial assistance or any sort of pecuniary the assets, deposits and aid expenditures made in my name. Therefore, I am no way liable for the same. to my husband for 5. That, in view of the above clarifications, I am to stated that I have neither intentionally aided, nor assisted, nor omitted, nor acted, nor instigated my husband to acquire Page 3 of 8 the aforesaid assets/expenditures in my name. If I had put my signature or anything done, the same are done without any knowledge of illegality or evil intention, rather the same are done in good faith because of our fiduciary relationship exists between us. It is further stated that if husband acquired some assets or made some expenditures, as above, in the name of his wife or children, the same cannot attribute any criminal liability towards the said wife or children, unless the said wife or children raise any independent defence in respect of acquisition of said assets.” 5. The Investigating Officer has not taken into consideration the statement made by the petitioner by way of the affidavit and went ahead and filed the charge-sheet on 30.06.2017 against the petitioner under Section 109 of I.P.C. 6. Mr. Moharana, learned Additional Standing Counsel for the Vigilance Department while objecting, submitted a written instruction dated 10.04.2025 received from the department before this Court. In the said written instruction, the Superintendent of Police, Vigilance, Balasore Division, Balasore through Special P.P. Vigilance, Baripada has inter alia stated as under:- “In view of the affidavit, which is filed by the petitioner Smt. Suprava Paul in DCRLMC No.10505 of 2025, does not attract the culpability of the petitioner in the original case. However, the Hon‟able High Court, Orissa may direct the trial Court, to treat this affidavit as evidence during course of trial and the petitioner shall not dispute the same in any manner in future.” Page 4 of 8 7. On the basis of the above admitted factual conspectus, Mr. Samantaray, learned counsel for the petitioner submits that the case of the present petitioner is directly covered by the judgment of this Court in the case of Smt. E. Swarnalata @ P. Swarnalata vrs. State of Odisha (Vigilance) reported in 2024 (I) OLR-616. He has emphasized paragraphs-5, 7, 8 & 9 of the said judgment, which reads thus:- “5. In the light of the above, if the allegations are weighed to elucidate the role of the petitioner to ascertain as to whether she has indeed „instigated‟ or „abetted‟ her husband to commit the crime, no case as such is made out against the petitioner from the allegation or material placed on record. Usually, it is the natural course that an unemployed wife is always dependent upon the will of her employed husband. The petitioner is within the fiduciary relationship with her husband. The principal accused is in a position and capacity to dominate the will of the petitioner. Thus in the situation the petitioner has no scope to deny the will of her husband to participate in the purchasing of the movable or immovable property. Mere participation with her husband cannot ipsofacto prove guilt of the petitioner. From the statement of the petitioner under Section161 Cr.P.C. it reveals that although she owns the assets but she has not claimed that she has independent income and she has also not attempted to justify the acquisition of assets and shelve the Principal accused. In absence of any defense put forth by her by justifying the assets acquired by her and on the face of her plain and simple statement that the properties are purchased by her husband in her name per se will not attract the offence of abetment as contemplated under Section 107 IPC. It‟s only the principal accused who has to explain the source of the property has been acquired, income therefore, the onus to prove the known source solely rests on the principal accused. from which Page 5 of 8 7. Its also elucidated from the record that the assets in subject are bought and also sold during the check period. However, the said immovable properties are factored into the disproportionate assets of the principal accused. The petitioner is not putting forth any defense, calming that she has independently acquired the assets alleged to have been in her name, the onus is on the main accused to prove the source of the income from which the assets were acquired in the name of his wife. But the prosecution is banking upon the allegation of “Abetment” sans any material to prosecute the petitioner. If the analogy of the prosecution is accepted to sustain the criminal proceeding against the petitioner, then in that event, every member of the family of the principal accused in whose name any movable or immovable property was/is purchased by the principal accused shall be liable to be prosecuted under section 109 IPC. 8. In the case of P. Nallammal and Another vrs. State Represented by Inspector of Police reported in (1999) 6 SCC 559 in Para No.15 the Hon‟ble Supreme Court has held that:- into for crystallization “15. Thus, the two postulates must combine the offence, together namely, possession of property or resources disproportionate to the known sources of income of public servant and the inability of the public servant to account for it. Burden of proof regarding the first limb is on the prosecution whereas the onus is on the public servant to prove the second limb. So it is contended that a nonpublic servant has no role in the trial of the said offence and hence he cannot conceivably be tagged with the public servant for the offence under Section 13(1)(e) of the PC Act.” Our own High Court while relying upon the Judgment of the Hon‟ble Apex court in P. Nallammal (supra) in Smt. Kumudini Padhy vrs. State of Odisha (Vig.) reported in AIR ONLINE 2019 ORI153 & (2019)2 OLR732 has held : Page 6 of 8 “7. It is not in dispute that in view of the ratio laid down in the case of P. Nallammal -Vrs.- State reported in (1999) 6 Supreme Court Cases 559, if a non-public servant is also a member of the criminal conspiracy for a public servant to commit any offence under the 1988 Act, or if such non-public servant has abetted any of the offences which the public servant commits, such non-public servant is also liable to be tried along with the public servant before the Court of a Special Judge having jurisdiction in the matter. Merely because some of the disproportionate assets stand in the name of a non-public servant, without any element of abetment, he cannot be asked to face the trial along with the public servant on the ground that he is the kith and kin of the public servant. However, if there are specific materials against such non-public servant being a kith and kin of the public servant to have abetted the public servant in the acquisition of disproportionate assets, he can be prosecuted along with the public servant in the disproportionate assets case which would depend on the facts and circumstances of each case. In the said case, illustrations have been given as to how the offence under section 13(1)(e) of the 1988 Act can be abetted by non-public servants.” 9. Taking into consideration the stand taken by the opposite party in the counter affidavit, the materials available on record, the peculiar facts of the present case, I am of the considered view that the role attributed to the petitioner does not attract the provisions of Section-107 IPC. Therefore, the petition deserves merit.” 8. I have taken into consideration the materials placed on record, the charge-sheet and the documents form part of the charge- sheet. In the light of the factual scenario, the judgment of this Court in Smt. E. Swarnalata (supra) is analyzed. It is apparent on record that the petitioner has very specifically averred in the affidavit that she has no knowledge regarding source of the amassment of the Page 7 of 8 disproportionate assets by her husband and she has also not put forth a specific defence herself to justify the disproportionate assets acquired by her husband. It is her husband, who has to explain the legitimate source of income from which he has acquired the disproportionate assets. Therefore, the petitioner cannot be prosecuted under the aid of Section 109 of I.P.C. Hence, the case of the petitioner is directly covered by the ratio of the judgment of this Court in Smt. E. Swarnalata (supra). Hence, the petition deserves merit. This Court has not expressed any opinion regarding the merits of the case in so far as the principal accused namely Suranjan Kumar Paul, who is the husband of the present petitioner is concerned. 9. Accordingly, the criminal proceeding in connection with Balasore Vigilance P.S. Case No.30 of 2014 corresponding to V.G.R. Case No.13 of 2024 pending in the Court of the learned Special Judge (Vigilance), Baripada and the consequential proceeding arising therefrom qua the petitioner is quashed. 10. With this observation, the CRLMC is disposed of. (S.S. Mishra) Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Swarna Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 18-Apr-2025 14:34:56 Judge Page 8 of 8