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CASE NO.:

Appeal (crl.) 1997 2000

PETITIONER:

STATE BY CENTRAL BUREAU OF INVESTIGATION

Vs.

RESPONDENT:

SHRI S. BANGARAPPA

DATE OF JUDGMENT: 20/11/2000

BENCH:

R.P.Sethi, K.T.Thomas

JUDGMENT:

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J U D G M E N T

THOMAS, J. Leave granted. A case has been

charge-sheeted by the Central Bureau of Investigation (CBI)

against S. Bangarappa, one time Chief Minister of Karnataka

State, alleging that he had amassed wealth grossly

disproportionate to his known sources of income during a

check period when he held public offices either as Minister

or Chief Minister. The offence under Section 13(2) of the

Prevention of Corruption Act, 1988, (for short the Act)

was pitted against him, read with Section 13(1)(e) thereof

on the ground that he was in possession of pecuniary

resources and assets so disproportionate that he could not

satisfactorily account for them. When respondent (S.

Bangarappa) moved the High Court of Karnataka for quashing

the said criminal proceedings, a single judge of the High

Court, as per the order impugned in this case, quashed the

same. This appeal, by special leave, is at the instance of

the CBI in challenge of the said order.

The check period is nearly a decade (between 9.8.1988

and 31.10.1997) during which the respondent held public

offices either as MLA or as a Minister in the State cabinet

or as Chief Minister of the State or as a Member of

Parliament. According to the CBI the total income which

respondent had from all his known sources of income, during

the aforesaid period, was around 30 lakhs and after

deducting his expenses (which were worked out approximately

to be 22 lakhs) he could not have made a saving of more than

7 lakhs of rupees. But the CBI found that during the said

period the respondent had acquired assets worth more than

Rs.1,16,00,000/- (one crore sixteen lakhs) for which he had

no explanation whatsoever.

When respondent was brought before the trial court he

pleaded for a discharge from the prosecution for which he

raised various contentions. The special judge heard

arguments at that stage for a long time spreading over to a

number of days. He then passed a very detailed order

(running into 57 closely typed pages) just for holding that

there is a prima facie case against the accused person to

frame charge under Section 13 read with Section 13(1)(e) of

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the Act and to proceed with the trial.

Respondent then moved the High Court under Section 482

of the Code of Criminal Procedure (for short the Code)

challenging the aforesaid order. Three contentions were

mainly raised by him before the High Court. First was that

the investigation was not conducted in the manner specified

under Section 17 of the Act. Second was that the court

which ordered to frame the charge had no jurisdiction to try

the case because no notification had been issued under

Section 4 of the Act. Third was that on the merits it is

not safe to rely on the statements alleged to have been made

by some of the witnesses.

Learned single judge of the High Court upheld all the

above three contentions raised by the respondent and

consequently the proceedings taken against him were quashed

in full measure.

Shri Harish Salve, learned Solicitor General of India,

contended that the High Court has grossly erred on all the

three points and there was absolutely no necessity for the

High Court to have interfered with the case at that

preliminary stage. When the trial court has chosen to

decide that the accused had to be tried for the offence, he

could not understand the wisdom of the High Court in making

a meticulous scrutiny of the evidence proposed to be adduced

by the prosecution and to scuttle further proceedings of the

trial without waiting for the trial to reach its normal

culmination. Shri Kapil Sibal, learned senior counsel, who

argued for the respondent, has fairly conceded that he could

not validly countermand the contentions of the learned

Solicitor General of India in respect of the first and

second points referred to above, but he made a bid to

sustain the order on the ground that there was no sufficient

materials to frame the charge.

Learned single judge reminded himself that public men

should have crystal clear and transparent personality and

that Caesars wife must be above suspicion. He made a

close scrutiny of the materials and felt that there is no

option except to quash the proceedings against the

respondent. However, learned single judge made the

following general observations:

No doubt corruption affects the normal fabric of the

society. The citizens loose their faith in the political

leaders who shout that they are for the people. No doubt

many people go unpunished although corruption causes

considerable damage to the economy of the nation. The roots

of corruption are so deep that it is an uphill task to

eradicate them. It is only possible if and only if each

citizen in our country follows the philosophy of

contentment. To quench the thirst of greed and lust one

must be drenched in shower of honesty and the fountain of

sublime love should sprinkle the magical drops on the eyes

of everyone who has shut his eyes for the reality of the

life. Unless one tries to find a golden key to open the

gates of wisdom, the heavenly life remains as a myth and we

are all making the futile effort to attain divinity in our

life. The public man should have crystal clear and

transparent personality. Caesars wife must be above

suspicion.

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Having been reminded himself of all such sublime

thoughts on how to eradicate the evil of corruption it would

have been appropriate for the High Court to direct the

respondent to participate in the trial to reach its logical

terminus by affording him the opportunity to explain or

account for the excess wealth projected by the investigating

agency. But learned single judge, instead of choosing that

line, has chosen to scuttle the proceedings at the beginning

stage of the trial itself for which he had even upheld the

contention that the investigation was illegally conducted.

For arriving at such a finding learned single judge

unfortunately bypassed the factual position that the

investigation was conducted by the CBI and not the regular

police of the State. It appears to us that learned single

judge assumed that investigation under Section 17 of the Act

could be conducted only by an officer not below the rank of

Deputy Superintendent of Police whichever be the

investigating agency. The reasoning of the learned single

judge on that score is this:

One can understand, if there is no mandatory

provision, it is left to the discretion of the

Superintendent of Police to assign his work provided the

statute permits. But to investigate, Section 17 of the Act

is mandatory in nature. No officer below the rank of Deputy

Superintendent of Police shall investigate the case. In

case if he has not carried on the investigation, there must

be some order authorising the other person to go on with the

investigation in the case on hand. This is the patent

lacuna.

The above is the result of a wrong understanding of

the scope of Section 17 of the Act. If the investigation is

to be conducted by the CBI the legislative insistence for

the rank of the officer to be not below that of Deputy

Superintendent of Police is given exception to. This can be

discerned even by a reading of the Section in its entirety.

We, therefore, extract Section 17 hereunder:

17. Persons authorised to investigate. -

Notwithstanding anything contained in the Code of Criminal

Procedure, 1973 (2 of 1974), no police officer below the

rank,- (a) in the case of the Delhi Special Police

establishment, of an Inspector of Police; (b) in the

metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad

and in any other metropolitan area notified as such under

sub-section (1) of section 8 of the Code of Criminal

Procedure, 1973 (2 of 1974), of an Assistant Commissioner of

Police; (c) Elsewhere, of a Deputy Superintendent of Police

or a police officer of equivalent rank, Shall investigate

any offence punishable under this Act without the order of a

Metropolitan Magistrate or a Magistrate of the first class,

as the case may be, or make any arrest therefore without a

warrant: Provided that if a police officer not below the

rank of an Inspector of Police is authoised by the State

Government in this behalf by general or special order, he

may also investigate any such offence without the order of a

Metropolitan Magistrate or a Magistrate of the first class,

as the case may be, or make arrest therefore without a

warrant: Provided further 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 officer not below

the rank of a Superintendent of Police.

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There is no dispute that CBI is a Delhi Special Police

Establishment. The Superintendent of CBI, Bangalore has

issued the following order on 21.10.1997:

Under the provision of Section 17 of P.C. Act, 1988,

Sh. B. Pannir Salvem, Inspector of Police Establishment

Division, Bangalore is hereby authorised to investigate the

said case against Sh. S. Bangarappa, Member of Parliament

and Former Chief Minister of Karnataka for the offences

under Section 13(2) read with 13(1)(e) of Prevention of

Corruption Act, 1988.

When there is such an order, any inspector of police

attached to the CBI can conduct the investigation. Learned

single judge unnecessarily quoted extracts from the decision

of this Court in State of Haryana & ors. vs. Bhajan Lal &

ors. {1992 Supple.(1) SCC 335} perhaps being misled in

believing that even when the investigation was conducted by

CBI the requirement contained in clause (c) of Section 17 of

the Act has to be followed. The word elsewhere in that

clause is clear indication that the insistence for Deputy

Superintendent of Police can have application only if it

does not fall under clauses (a) and (b). We do not wish to

delve more into this aspect as Shri Kapil Sibal, learned

senior counsel for the respondent, has fairly conceded that

the High Court has gone wrong on that aspect.

Learned single judge thereafter proceeded to consider

the contention that the court concerned had no jurisdiction

to try the case. While upholding the said contention he has

stated thus:

There is no notification in this case that the XXI

City Civil and Sessions Judge was empowered to try this

case. Mr. Tharanath, learned counsel for respondent relied

upon the decision popularly known as Jayalalithas case

reported in 1999 AIR SCW 1579. The points involved in that

case are entirely different from the facts of this case.

The very question of appointing the Special Judge was

challenged to try all cases against her. The Honble

Supreme Court has held that there is nothing wrong for the

appointment of Special Judge to try all the cases as the

speedy disposal is one of the criteria. Hence, in my

opinion, by close scrutiny of the judgment cited by the

learned counsel for CBI is not applicable unless there is

notification if any, to try such case. Otherwise, it will

be a trial without jurisdiction. In view of these facts and

circumstances, I feel that there is some force in the

submission of the learned counsel for the petitioner.

We strongly feel that learned single judge has chosen

to uphold the contention in a very casual manner without

taking into account the fall-out of such a finding on other

cases pending in that court. Section 4(1) of the Act says

that Notwithstanding anything contained in the Code of

Criminal Procedure, 1973, or in any other law for the time

being in force, the offences specified in sub-section (1) of

Section 3 shall be tried by special judges only.

Sub-section (2) enjoins on the special judge concerned to

try every offence specified in Section 3(1) of the Act.

Power is conferred on the Central Government as well as the

State Government to appoint special judges. Such conferment

can be discerned from Section 3(1) of the Act which reads

thus:

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The Central Government or the State Government may,

by notification in the Official Gazette, appoint as many

special judges as may be necessary for such area or areas or

for such case or group of cases as may be specified in the

notification to try the following offences, namely:- (a) any

offence punishable under this Act; and (b) any conspiracy

to commit or any attempt to commit or any abetment of any of

the offences specified in clause (a).

On 13.6.1990, the State Government of Karnataka had

issued a notification which is extracted below:

In exercise of the powers conferred by sub- section

(1) of Section 3 of the Prevention of Corruption Act, 1988

(Central Act 49 of 1988) and in partial modification of

Notification No.HD 192 PCR 82 dated 15/16th February, 1982,

No.HD 110 PCR 82 dated 11th May, 1982 and all other

Notification issued on the subject, the Government of

Karnataka hereby appoints the Sessions Judge specified in

col. (2) of the table below as Special Judge for the areas

specified in the corresponding entries of Col. (3) thereof

for the cases instituted by the Delhi Special Police

Establishment in respect of the offences specified in the

said sub- section.

Sl. Name of the Area No. Judge and Designation

-------------------------------------------- 1. XXI Addl.

City Bangalore District Civil and Sessions (including the

area Judge. Comprising city of Bangalore declared as

Metropolitan area under the Code of Criminal Procedure,

1973) and the District of Bangalore Rural, Chittradurga,

Kilar and Tamkur.

Then why did the learned single judge countenance that

there was no notification empowering the XXI City Civil and

Sessions Judge to try such cases? We are greatly distressed

at the degree of superciliousness with which the contention

was dealt with by the learned single judge without even

checking up whether there was any such notification. That

apart, if the High Court found that XXI City Civil and

Sessions Judge, Bangalore is not empowered to try such

cases, how could that be a ground to quash the criminal

proceedings? At the worst that would be a ground to

transfer the case from that court to the court having

jurisdiction to try the offence, and if no court has been

empowered till then, the criminal proceedings can be kept in

abeyance till the Government issues a notification

conferring such power on any other court. Any way, since

the court which ordered framing of charge against the

respondent was legally empowered to try the offence alleged

against the respondent it is not necessary to keep the

criminal proceedings in abeyance so far as this case is

concerned. We may point out that on this aspect also Shri

Kapil Sibal, learned senior counsel did not dispute the

stand adopted by the Solicitor General of India.

Learned single judge then proceeded to discuss the

merits of the evidence in this case. He made detailed

reference to the materials placed by the prosecution for

supporting the charge. When it was contended by the

Solicitor General of India that such a detailed analysis at

this stage was unwarranted Shri Kapil Sibal pointed out that

even the trial court did the same thing for deciding whether

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the charge should be framed or not. It is true that the

trial court should have avoided discussing the materials in

such details when it has chosen to frame charge. This court

has stated in Kanti Bhadra Shah and anr. vs. State of West

Bengal {2000 (1) SCC 722} that when a trial court decides to

frame charge it is not necessary to record reasons thereof.

We extract the relevant observations from that decision.

If the trial court decides to frame a charge there is

no legal requirement that he should pass an order specifying

the reasons as to why he opts to do so. Framing of charge

itself is prima facie order that the trial judge has formed

the opinion, upon considering the police report and other

documents and after hearing both sides, that there is ground

for presuming that the accused has committed the offence

concerned. If there is no legal requirement that

the trial court should write an order showing the reasons

for framing a charge, there is no need to further burden the

already burdened trial courts with such extra work. The

time has reached to adopt all possible measures to expedite

the court procedures and to chalk out measures to avert all

roadblocks causing avoidable delays.

Learned single judge considered the statement of CW-36

(Annappa) and CW-37 (Puttappa) and a score of other

witnesses cited by the prosecution. High Court then entered

upon a finding that it is not safe to rely on the statement

of some of those witnesses. Learned single judge undertook

the said exercise on the ground that trial court also

discussed the prosecution case at length to reach the prima

facie finding that the sale deeds in the names of Annappa

and Puttappa are benami transactions. He reached the

finding that the trial court had gone wrong in accepting the

statements of the above witnesses.

Shri Harish Salve addressed arguments to show that the

purchases made by the respondent in the names of Annappa and

Puttappa are all benami transactions and all such properties

are actually the properties of the respondent. He referred

to other materials for supporting his contention. Shri

Kapil Sibal, on the other hand, made an endeavour to show

that those properties cannot be counted in the account of

the respondent.

Time and again this Court has pointed out that at the

stage of framing charge the court should not enter upon a

process of evaluating the evidence by deciding its worth or

credibility. The limited exercise during that stage is to

find out whether the materials offered by the prosecution to

be adduced as evidence are sufficient for the court to

proceed further. (vide State of M.P. vs. Dr. Krishna

Chandra Saksena, [1996 (11) SCC 439].

We have no doubt that the materials which prosecution

enumerated are sufficient to frame the charge for the

offence under Section 313(2) read with Section 13(1)(e) of

the Act.

No doubt the prosecution has to establish that the

pecuniary assets acquired by the public servant are

disproportionately larger than his known sources of income

and then it is for the public servant to account for such

excess. The offence becomes complete on the failure of the

public servant to account or explain such excess, [vide M.

Krishna Reddy vs. State Dy. Superintendent of Police,

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1992(4) SCC 45, P. Nallammal and anr. vs. State, 1999(6)

SCC 559]. It does not mean that the court could not frame

charge until the public servant fails to explain the excess

or surplus pointed out to be the wealth or assets of the

public servant concerned. This exercise can be completed

only in the trial.[ K.Veeraswami v. Union of India (1991

(3) SCC 655; State of Maharashtra vs. Iswar Piraji

Kalpatri 1996(1) SCC 542 In the latter decision the court

held thus: The opportunity which is to be afforded to the

delinquent officer under Sec.5(1)(e) of the Act

[corresponding to Sec.13(1)(e) of 1988 Act of] of

satisfactorily explaining about his assets and resources is

before the court when the trial commences, and not at an

earlier stage.

For the above reasons we set aside the impugned

judgment of the High Court. We direct the trial court to

proceed with the trial in accordance with law and to dispose

it of as expeditiously as possible.