Smt. Gulab Devi v. Central Bureau of Investigation

26.7.2012 pertaining to FIR No. RCS112005A0016 dated

2.8.2005 pending before the Special Judge (CBI), Anti- Corruption, Dehradun. Petitioner has also challenged the order dated 2.7.2012 passed by the court below, whereby framing of charges against the accused petitioner has been ordered.

#3. Facts, in brief, are that initially an FIR was lodged on 2.8.2005 under the Prevention of Corruption Act (for short, the Act) against Swetabh Suman, an officer belonging to Indian Revenue Service, who was working at that time as Additional Commissioner of Income-tax for possessing amassive wealth which were disproportionate to his known sources of income. The matter was investigated by the Central Bureau of Investigation (CBI) and it culminated into the submission of chargesheet against Mr. Swetabh Suman as well as the present 2 petitioner Smt. Gulab Devi for the appropriate offences under the Act read with Section 109 IPC. Smt. Gulab Devi is none other but the mother of Swetabh Suman.

#4. As soon as the chargesheet was filed and order of cognizance was passed thereupon by the learned Magistrate, Mr. Swetabh Suman moved this Court by filing a petition under Section 482 CrPC for quashing the chargesheet. This Court on 4.4.2011 dismissed the said petition on the ground that remedy is available to him under the Code before the Magistrate (in the present case the Special Judge) at the first instance. So, he may seek his discharge on appropriate grounds from the Court of Magistrate itself. It was further observed that in the event accused applicant is not discharged and if he has grievance for not having been discharged, it shall be open to him to take such recourse to law, including re- approaching this Court.

#5. Although Smt. Gulab Devi was not a petitioner in the previous petition filed before this Court, but following the aforesaid observations, she has approached this Court by filing the instant writ petition under Section 226 of the Constitution of India with aforementioned prayer.

#6. Citing the precedent rendered by the Hon(cid:146)ble Apex Court in case of Ranjeet Singh v. Ravi Prakash, AIR 2004 SC 3892, a preliminary objection regarding the maintainability of the instant petition has been raised by the learned Counsel for the CBI. The crux of the said precedent is reproduced as under: 3 trials would (cid:147)25. It is well known fact that trials of corruption cases are not permitted to further easily and a trial of proceed corruption case takes anything upto 20 years in completion. One major reason for this state of affairs is that the moment charge is framed, every trial lands into High Court and order on charge is invariably assailed by the litigants and the High Court having flooded itself with such revision petitions, would take any number of years in deciding the revision petitions on charge remain stayed. Legislature looking at this state of affairs, enacted provision that interlocutory orders cannot be the subject matter of revision petitions. This Court for reasons as stated above, in para No. 3 & 4 had considered the state of affairs prevalent and came to conclusion that no revision against the order of framing of charge or order directing framing of charge would lie. Similarly, a petition under Section 482 of Cr. P.C. would also not lie. I am of the opinion that once this Court holds that a petition under Article 227 would lie, the result would be as is evident from the above petitions that every order on charge which earlier used to be assailed by way of revision would be assailed in a camouflaged manner under Article 227 of the Constitution and the result would be same that proceedings before the trial court shall not proceed. through requires

#26. The decisions on a petition assailing charge voluminous evidence collected by the CBI, analyzing the evidence against each accused and then coming to conclusion liable to be whether the accused was charged or not. This exercise is done by Special Judge invariably vide a detailed speaking order. Each order on charge of the Special Judge, under Prevention Corruption cases, normally runs into 40 to 50 pages where evidence is discussed in detail and thereafter the order for framing of charge is made. If this Court entertains petitions under Article 227 of Constitution to re-appreciate the evidence 4 appreciate collected by CBI to see if charge was liable to be framed or, in fact, the Court would be doing so contrary to the legislative intent. No arguments advanced in a case on charge without going through the entire record. The issues of jurisdiction and perversity are raised in such petitions only to get the petition admitted. The issue of jurisdiction is rarely involved. The perversity of an order can be argued in respect of any well written judgment because perversity is such a term which has a vast meaning and an order which is not considered by a litigant in its favour is always considered perverse by him and his counsel. Therefore, entertaining a petition under Article 227 of Constitution against an order on charge would amount to doing indirectly the same thing which cannot be done directly, I consider that no petition under Article 227 can be entertained.(cid:148)

#7. Refuting the argument of learned Counsel for the CBI, learned Counsel for the petitioner relied upon an of late judgment of Hon(cid:146)ble Apex Court rendered in the case of Harshendra Kumar D. v. Rebatilata Koley & Others, reported in (2011) 3 SCC 351, wherein it has been held has under: “25. In our judgment, the above observations cannot be read to mean that in a criminal case where trial is yet to take place and the matter is at the stage of issuance of summons or taking cognizance, materials relied upon by the accused which are in the nature of public documents or the materials which are beyond suspicion or doubt, in no circumstance, can be looked into by the High Court in exercise of its jurisdiction under Section 482 or for that matter in exercise of revisional jurisdiction under Section 397 of the Code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be 5 quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents (cid:150) which are beyond suspicion or doubt (cid:150) placed by accused, the accusations against him cannot stand, it would be travesty of justice if accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may the materials which have significant bearing on the matter at prima facie stage.(cid:148)

#8. So, it can be well understood that in an appropriate case, if on the face of the documents, placed by the accused, which are beyond suspicion or doubt, the accusation against him if cannot stand then the High Court can consider the defence of the accused or embark upon an enquiry in respect of the merits of the accusations.

#9. Now, this Court has to judge whether the instant case is appropriate one for granting the prayer as sought by the petitioner. The check period is from 1997 to 2005 and the description of the computation of disproportionate assets of Smt. Gulab Devi, as has been worked out by the CBI, is as under: S. Description No. Amount (Rs.)

#1. Assets at the end of the check period 14010824 (Statement B)

#2. Assets at the beginning of the check period 633467 (Statement A)

#3. Assets acquired during the check period 13377357 6 (Statement B-A)

#4. Expenses during period 1007877 (Statement D)

#5. Total assets & expenses during the check 14385234 period (B-A+D)

#6. Income during the check period (Statement 6826939 C)

#7. Disproportionate Assets (B-A+D-C=DA) 7558295 111%

#10. This Court has gone through the impugned order dated 2.7.2012 passed by the Special Judge, CBI, Dehradun. It is an elaborate and reasoned order, wherein each and every aspect of the evidence collected by the CBI, which appears to be formidable in nature to prove the prima facie guilt of the accused petitioner, has been discussed. In the opinion of this Court, it would amount to unnecessarily burdening this judgment by reproducing and analyzing the evidence collected by the investigating agency, which have been discussed by the court below.

#11. So, having gone in the depth of this case, the Court finds that there is overwhelming evidence that the petitioner has amassed a huge wealth, which are disproportionate to her known sources of income. It is also prima facie apparent from the evidence available on record that the wealth collected by the main accused Swetabh Suman was siphoned off in the name of his mother Smt. Gulab Devi and other relatives so that he may render some explanation as and when any such occasion arises.

#12. It is prima facie clear that Smt. Gulab Devi became the owner of billions which included several 7 acres of land and several grand bungalows and kothis in different cities not at the strength of her own income, but out of the wealth illegally collected by her son Mr. Swetabh Suman. Hence, trial is an utmost necessity in the present case.

#13. Consequently, the petition fails and it is herby dismissed. Trial court is directed to conclude the trial as expeditiously as possible.

#14. Inform the court concerned accordingly.

12.10.2012 Prabodh (Servesh Kumar Gupta, J.)