The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLMC No.2660 of 2023 (In the matter of an application under Section 482 of the Criminal Procedure Code, 1973) ----------- Smt. E. Swarnalata @ P. Swarnalata……. Petitioner -Versus- State of Odisha (Vigilance) ……. Opp. Party For the Petitioner : Mr. Bishnu Prasad Pradhan, Advocate For the Opp. Party : Mr. Niranjan Maharana Additional Standing Counsel (Vigilance) CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA _________________________________________________________ Date of Hearing: 13.02.2024: Date of Judgment: 06.03.2024 _________________________________________________________ S.S. Mishra, J. 1. The husband of the petitioner being the principal accused and the petitioner are facing prosecution in Disproportionate Assets case arising out of the F.I.R. in Berhampur Vigilance P.S. Case No.45 of 2016 corresponding to GR (V) Case No.33/2016(v) for the offences under 2 Sections-13(2)/13(1)(e) of the Prevention of Corruption Act r/w Section- 109 IPC pending in the Court of the learned Special Judge, Vigilance, Berhampur. The petitioner is seeking quashing of the criminal proceeding initiated against her under the aid of Section-109 IPC. 2. The petitioner is the wife of the main accused in the said F.I.R. She is admittedly a housewife. The only allegation against the petitioner is that there are certain assets in her name. Therefore, under the aid of Section-109 IPC, she has been made accused and made to suffer the proceeding. The petitioner in the present proceeding is assailing the entire criminal prosecution initiated against her. 3.
Legal Reasoning
Mr. Maharana, learned counsel for the opposite party submits that the principal accused had approached this Court by filing of CRLMC No. 687 of 2021 seeking quashing of the entire proceeding against him. After the removal of the properties counted towards his disproportionate assets belongs to his father. The coordinate Bench of this Court quashed the proceeding vide its order dated 01.09.2021 on the ground that after the removal of the assets of the father of the petitioner the disproportionate amount falls less than 100%, the Criminal prosecution initiated against the petitioner is not sustainable. Thereafter, the Vigilance Department approached the Hon’ble Supreme Court by filing SLP (CRL) No. 5244/2022. Vide order dated 13.07.2022 while staying the operation of the Page 2 of 10 3 impugned order, the Apex Court directed continuance of the investigation and allowed the investigating agency to file the report under Section.173 of Cr.P.C. The investigation was concluded and charge sheet was filed. Thereafter, the matter was finally taken up by the Hon’ble Supreme Court on 03.03.2023. While disposing of the petition following order was passed:- “ Leave granted. The impugned judgment dated 01.09.2021 allows the petition under Section 482 of the Code of Criminal Procedure, 1973, filed by the proceedings the respondent-E Sankar Rao and quashes emanating from FIR No. 45 of 2016 dated 11.08.2016 registered at Police Station – Berhampur Vigilance, District Ganjam, Odisha under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 and Section 109 of the Indian Penal Code, 1860. By order dated 13.07.2022, while issuing notice in the present appeal by special leave, we had stayed the operation of the impugned judgment, clarifying that the investigation will continue, and the appellant would be at liberty to file the charge sheet/closure report before the trial Court. We have examined the reasoning in the impugned judgment, and we are of the opinion that the High Court has conducted a mini trial when the investigation was still pending. The judgment refers to the stand of the respondent with regard to the properties of his father, and examines whether or not a case for disproportionate assets is established. Reference is made to the Vigilance Department’s Circular No. 4/2015. According to us, this is not the correct and proper approach to be adopted by the High Court. Normally, the High Court’s do not interfere at the stage of the investigation as facts are ascertained and thereupon either the closure report or the charge sheet is filed by the Police. We are informed that charge-sheet has been filed relying on evidence and material collected during investigation. During the course of hearing, our attention was drawn to the Vigilance Department’s Circular No. 4/2015, which are guidelines for the registration of cases/open enquiries in petty matters, etc. We make no comments in this regard and it is open to the respondent to raise all these pleas and contentions before the trial court. We clarify that the observations made in this order are for the disposal Page 3 of 10 4
Decision
of the present appeal and would not be considered as findings on the merits of the case. Recording the aforesaid, we allow the present appeal and set aside the impugned judgment dated 01.09.2021. Pending application(s), if any, shall stand disposed of,” In view of the aforementioned development Mr. Maharana submits that this is the second attempt being made by the wife of the principal accused for quashing of the proceeding. In view of the order of the Hon’ble Supreme Court no interference is called for. 4. Mr. Pradhan, learned counsel for the petitioner submits that neither this Court nor the Hon’ble Supreme Court had occasioned to deal with the issues raised by the petitioner in the present case. The petitioner being the wife of principal accused has been made an accused under the aid of Section 109 of Indian Penal Code. Therefore, role and overt act attributed to the petitioner by the prosecution needs to be analyzed in the light of the provisions contained in the Sections 107 and 109 of Indian Penal Code. Mr. Pradhan, further submits that even if the allegations are taken at its face value, no case as such is made out against his client under Section-109 IPC. Section-109 IPC reads as under:- “109. Punishment of abetment if the act abetted is committed in consequence and where no express provision is made for its punishment.—Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence. Explanation.—An act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in Page 4 of 10 pursuance of the conspiracy, or with the aid which constitutes the abetment.” 5 The only ingredient requires attracting offence under Section-109 IPC is the active participation in the abetment of the crime. The abetment is defined under Section-107 IPC which reads as under. “107. Abetment of a thing.—A person abets the doing of a thing, who— First.—Instigates any person to do that thing; or Secondly.—Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.—intentionally aids, by any act or illegal omission, the doing of that thing. Explanation 1.—A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.” In the case of Sri Sushnta Dasgupta & another vs. Central Bureau of Investigation, the Hon’ble High Court of Calcutta while defining ‘instigation’ has held as under:- “The word ‘instigate’ denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. Presence of mens rea, therefore, is necessary to concomitant of instigation. To prove the offence punishable U/s. 109 IPC, there are some ingredients to be proved; they are- The abettor in exercise of his mental process caused the principal accused to commit an offence and the abettor has done it in the following way- (i) (ii) (iii) by way of instigating the principal accused, or by way of conspiracy that one or more other person for doing that offence by the principal accused or by way of intentionally aiding by act or illegal omission, for doing offence by the principal accused. In the present case the O.P. has not collected any evidence against petitioner that she has any point Page 5 of 10 6 of time instigate her husband for commission of such offence. On the other hand the peculiar facts and circumstances of this case goes to show that the petitioner is the wife of principal accused. 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 Page 6 of 10 7 contemplated under Section 107 IPC. It’s only the principal accused who has to explain the source of income from which the property has been acquired, therefore, the onus to prove the known source solely rests on the principal accused. 6. To further analyze the case of prosecution, benefit could be derived from contents of the counter filed by the opposite party in the present case. Para-10 reads as under: “In reply to the aforesaid contentions, it is humbly submitted by the present deponent (who has concluded the Investigation and submitted Charge Sheet) that no such money receipt regarding sale of gold ornaments and RSDs in respect of sale of lands were available either during search, or in the file as contended by the petitioner, for which the same were not taken into consideration in the income side of the charge sheet. Moreover, the same can be examined during trial. It is further submitted that apart from the immovable properties, there were investments/deposits in banks in the name of the petitioner. The petitioner had been examined and in her statement recorded U/S. 161 of the Cr.P.C., she has stated that “she was a housewife. Her husband had purchased 5 nos. of plot at Rikapali Mouja, one at Ramachandrapur Mouja and one at Ralab Mouja in her name. Her husband had made the deposits in her bank accounts and she made the household expenditure by the withdrawing money Departmental Circular cannot supersede the statutory provision. Similarly, the other contentions as raised by the petitioner are hereby refuted and the same cannot be adjudicated at this stage. Hence, there is no abuse of process in continuation of the criminal proceeding.” that Account.” Furthermore, from 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 Page 7 of 10 8 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:- “15. Thus, the two postulates must combine together for crystallization into the offence, 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 non- public 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 8 of 10 9 “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. 10. In the foregoing circumstances, the petition is allowed and the criminal prosecution arising out of the F.I.R. in Berhampur Vigilance P.S. Case No.45 of 2016 corresponding to GR(V) Case No.33/2016(v) for the offences under Sections-13(2)/13(1)(e) of the Prevention of Corruption Act r/w Section-109 IPC pending in the Court of the learned Special Judge, Page 9 of 10 Vigilance, Berhampur and the consequential proceeding arising therefrom 10 qua the present petitioner are quashed. 11. Accordingly, the CRLMC is disposed of. ……………… S.S. Mishra (Judge) Signature Not Verified Digitally Signed Signed by: SUBHASIS MOHANTY Designation: P.A. Reason: Authentication Location: High Court of Orissa, Cuttack. Date: 06-Mar-2024 18:43:34 Page 10 of 10