As per the case facts, a Motor Vehicle Inspector and his wife were accused of acquiring assets disproportionate to their known sources of income. A First Information Report was registered ...
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 14521453 OF 2022
(Arising out of Special Leave Petition (Crl.) Nos. 34453446 of 2019)
STATE THROUGH ….APPELLANT(S)
DEPUTY SUPERINTENDENT Of POLICE
VERSUS
R. SOUNDIRARASU ETC. ....RESPONDENT(S)
J U D G M E N T
J.B. PARDIWALA, J.
1. Leave granted.
2.Since the issues raised in both the captioned appeals are the
same, those were heard analogously and are being disposed of by
this common judgment and order.
3.These appeals are at the instance of the State of Tamil Nadu
through the Deputy Superintendent of Police, Vigilance and
1
AntiCorruption, Salem District, Tamil Nadu and are directed
against the two judgments and orders passed by the High Court of
Madras dated 27.04.2017 allowing the criminal revision
applications preferred by the respondents herein (original accused
persons) discharging them from the prosecution under Section
13(2) read with 13(1)(e) of the Prevention of Corruption Act, 1988
(for short, “Act 1988”) read with Section 109 of the Indian Penal
Code (for short, “the IPC”).
FACTUAL MATRIX
4.The Respondents in these appeals are husband and wife. The
Respondent No.1 R. Soundirarasu at the relevant point of time
was serving as a Motor Vehicle Inspector (Grade 1) at Namakkal
during the check period, i.e., from 01.01.2002 to 31.03.2004. The
Respondent No. 2, namely, Suguna is the wife of the Respondent
No. 1.
5.The Respondent No. 2 is a commerce graduate and claims to
be having a separate source of income. She was a partner in a
partnership firm running in the name of S.K. Mat Industries along
with one R. Kumar w.e.f. 23.10.1993. The partnership came to be
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dissolved on 31.03.2003, and, thereafter she continued as a sole
proprietor.
6.It is the case of the Respondent No. 2 that she has been
paying the income tax from 1990 onwards and her IT Returns are
being scrutinized by the appropriate authorities.
7.It appears from the materials on record that a First
Information Report (FIR) came to be registered against the
Respondent No. 1 herein dated 19.09.2005 at the Police Station,
Vigilance and AntiCorruption, District Salem for the offences under
the Act 1988 as enumerated above.
8.For better and effective adjudication of the present appeals, we
deem it necessary to reproduce the entire FIR as under:
“Column No. 12 in FIR Cr. No.9/AC/2005/SL/SU
Tr. R. Sundararasu was working as Motor Vehicle
Inspector Grade1 at the office of the Regional Transport
Officer, Namakkal, Rasipuram and Sankari from March
98 to May 2000 to July 2002 and September 2002 to
September2004 respectively and again in Namakkal
from 27.09.2004. He is a Public Servant as defined u/s
2 (C) of Prevention of Corruption Act, 1988.
The accused Tr. R. Sundararasu, Motor Vehicle
Inspector Grade1 hailed from an ordinary agricultural
family. He is a second son to his parents. Tr. Ramasamy
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and Tmt. Krishnammal. He has got diploma in
Mechnaical Engineering and got B.E., degree by
attending evening classes. He got married one Suguna
D/o Tr. Duraisamy of Kavai on 12.2.90. He has got one
son by name Sarankumar who is studying VIIth
standard in Holy Matriculation School, Salem.
On receipt of credible information that the accused
has acquired and he is in possession of assets in the
form of house sites, lands, house building etc in his
name and in the name of his wife and fatherinlaw,
worth more than his known sources of income, a
preliminary verification made, during which the
following information has come to notice.
As on 1.1.2002, the accused is found to have been
in possession of assets in his name and in the name of
his wife Tmt. Suguna, gold jewels, Silver ornaments,
household articles etc. by way of gift and purchase etc.
all worth about Rs. 3,75,250.00.
As on 29.2.2004, the accused is found to have been
in possession of properties and pecuniary resources in
the name of his wife Smt. Suguna, his fatherinlaw
Thiru.Duraisamy and his minor son Sarankumar of a
total value of Rs. 18,41,680.00. These include, a part
from the properties and pecuniary resources in his
possession as on 1.1.2002. Additionally acquired
properties and pecuniary resources such as House
Building and construction of house building.
During the period from 1.1.2002 and 29.2.2004,
the accused is found to have acquired the following
properties:
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(i) Constructed a terraced house worth
about Rs.7,99,500/ in the name of his
wife Tmt. Suguna at Door No.555,
situated in S.No.11/1266 of Ganapathy
Village, Ganapathypuram, Coimbatore
after demolishing the old terrace house.
(ii
)
Purchased a terraced building worth
Rs.8,61,270 / with a plinth area of 70
Sq. metre on the ground floor and 10
Sq. Metre on the 1
st
floor in
Bodinaikanpatty village S.No.69/1A1
in the name of his fatherinlaw
Tr.Duraisamy under Doc.No.499/2004
dt. 6.2.2004 of SRO, Sooramangalam
and the same was transferred in the
name of Sarankumar, the minor son of
the accused, by way of Settlement
Deed in Doc.No.645/2004, Dt.
16.02.2004 by the said Tr.Duraisamy
incurring a sum of Rs.5,160/ towards
stamp duty and registration fees.
The Total value of the properties and pecuniary
resources acquired by the accused during the period
from 1.1.2002 to 29.2.2004 has been tentatively
estimated to be Rs.14,66,430/
Accused's wife Smt. Suguna is a house wife. She is
found to have had no sufficient sources of income of her
own to acquire the aforementioned assets. So also, Tr.
Duraisamy, the fatherinlaw of the accused appears to
have had no necessity for the purchase and transfer of
the property in the name of the grand son (son of the
accused). Thus, the accused appears to have acquired
the above properties in the name of aforesaid persons as
his benami (benamis).
The total income of the accused and his family
members and expenditure of the accused and his family
during the above said period (i.e.1.1.2002 to 29.2.2004)
have been tentatively assessed as Rs.8,84,486 and
11,00, 198 respectively and hence there was no likely
savings for the above said period and on the contrary
there was an excess expenditure over the income of the
accused to the extent of Rs.2,15,712/.
There are grounds to believe that the aforesaid
assets are for beyond and disproportionate to the
known sources of income of the accused for the above
said period to the extent of Rs.16,82,142
(Rs.14,66,430+2,15,712).
The above information discloses an offence of
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criminal misconduct by public servant punishable u/ s
13(2) r /w 13(1)(e) of prevention of Corruption Act, 1988,
against the accused and requires a detailed
investigation.
I am therefore, registering a case in
Cr.No.9/AC/2005/SL/SU against the accused for the
above said offence for the purpose of taking up
investigation.
(SdXXX)
(K.PERIYASAMY)
DSP, V&AC, Spl.Cell,
Salem.”
9.It appears that vide the letter dated 16.10.2007 the
investigating officer called for the explanation from the Respondent
No. 1 as regards the allegations levelled in the FIR.
10.The Respondent No. 1 vide his letter dated 1.11.2007 offered
his explanation stating that he does not possess or had acquired
any assets disproportionate to the known source of his income. The
Respondent No. 1 also placed on record the income tax returns filed
by his wife from 1990 onwards and that of the partnership firm too
from 1993.
11.It appears that in the course of investigation the role of the
Respondent No. 2 as the wife of the Respondent No. 1 also surfaced
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as an abettor.
12.Upon conclusion of the investigation, the Investigating Agency
filed chargesheet in the Court of the Special Judge, Salem for the
offences enumerated above. The filing of the chargesheet
culminated in the registration of the Special Criminal Case No.
36/2008 in the Court of the Special Judge, Salem.
13.In such circumstances referred to above, the Respondents
preferred Crl. M.P. Nos. 87 and 86 of 2014 resply under Section 239
of the Code of Criminal Procedure (for short, ‘the CrPC’) seeking
discharge from the trial essentially on the ground of lack of any
prima facie case against them.
14.The Special Judge adjudicated both the aforesaid applications
filed by the respondents and thought fit to reject those by two
separate orders dated 29.03.2016. While rejecting the Crl. M.P. No.
86 of 2014 filed by the respondent No. 2 (wife of respondent No. 1),
the Special Judge observed as under :
“15. Yet another ground urged by the petitioner is
that the income derived by the petitioner being partner
in S.K. Mat Industries and by doing money lending
business was not given due credit by the Investigating
Officer and as such the decision arrived at by the
Investigating Officer that the petitioner has no
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wherewithals to acquire the properties standing in her
name and described in Statement II and to treat the
said properties as the properties acquired by the 1st
accused in the name of the petitioner is totally wrong.
The Investigating Officer in his final report has
categorically mentioned that no documents were
produced during investigation, either by the petitioner
or her husband, to showcase the income derived by the
petitioner by doing money lending business. Even in
the present application there is no whisper in this
regard by the petitioner. The contentious issue as to
whether the petitioner derived income from S.K. Mat
Industries and through money lending business can be
decided only during trial based on the evidence placed
before the court in this regard. Hence this court decides
that the above ground urged by the petitioner is a pre
matured one and thus cannot be entertained at the
time of framing charges.
16. In the present case the total value of assets and
pecuniary resources held by the petitioner, her
husband and son at the end of the checkperiod has
been computed by the Investigating Officer at
Rs.31,69,498/ as set out in Statement II. During
investigation the petitioner and her husband have not
produced any documents except the IncomeTax
returns of the petitioner to trace the source of income of
the petitioner to acquire the properties that stood
recorded in her name during the checkperiod. Hence
the Investigating Officer has proceeded to treat the
properties standing in the name of the petitioner and
her minor son as the properties of the petitioner's
husband, the lst accused, which cannot be found fault
at this stage more so when the petitioner's husband
has not disclosed the acquisition of properties by his
wife, the petitioner herein, to the concerned Department
as required under Tamil Nadu Government Servants
8
Conduct Rules. Hence this court decides that, at this
stage, there is no substance in the contention' of the
petitioner that the methodology adopted by the
Investigating Officer in computing the value of the
assets of the petitioner's husband is erroneous.
x x x x x
18. The materials produced by the Investigating Officer
along with the final report prima facie disclose the
existence of all the ingredients essential to constitute
the offence U / s 13 (2) r/w 13 (2) r/w 13 (1) (e) of the
Prevention of Corruption Act read with Sec : 109 of the
IPC alleged to have been committed by the petitioner.
Since the offence alleged against the petitioner and her
husband are grave in nature the petitioner cannot be let
scot free without facing trial and without affording an
opportunity to the prosecution to establish the case
during trial by adducing evidence.
19. Hence on a conspectus evaluation of all legal and
factual aspects involved in the application, this court
decides that there is no merit in the contention that the
charge levelled against the petitioner is groundless on
the face of materials available on record. Hence this
court decides that the petitioner is not entitled for an
order of discharge as prayed for.”
15.While rejecting the Crl. M.P. No. 87 of 2014 filed by the
Respondent No. 1 (husband), the Special Judge observed as under:
“8. Now let us consider the grounds urged by the
petitioner in seriatum.
I.The IncomeTax returns submitted by the
petitioner’s wife, was not considered by the
Investigating Officer in the proper perspective.
The learned counsel for the petitioner assiduously
9
argued that through the IncomeTax returns submitted
by the wife of the petitioner, who is arrayed as 2
nd
accused in the main case, it established beyond doubt
that the petitioners wife had sufficient source to acquire
properties mentioned in Statement II but the
Investigating Officer in total disregard to the Income
Tax returns has treated the properties standing in the
name of the petitioner’s wife as the properties of the
petitioner on the premise that the petitioner has
purchased the properties benami in the name of his
wife and as such the computation made by the
Investigating Officer in arriving at the total value of the
assets acquired by the petitioner during the check
period at Rs. 28,23,492/ as set out in Statement V is
grossly erroneous. As already pointed out the fact that
the petitioner’s wife, the 2
nd
accused is an IncomeTax
assessee and that she had submitted her IncomeTax
returns to the concerned IncomeTax authorities
regularly is not seriously disputed. The petitioner is
making an adroit effort to impress upon the court that
particulars set out in the IncomeTax returns
unequivocally establish the financial capabilities of the
wife of the petitioner to purchase properties and hence
the properties standing in the name of the wife of the
petitioner has to be treated as selfacquired properties
of the wife of the petitioner.
11.(II). Income derived by the petitioner’s wife through
money lending business not given due consideration.
According to the petitioner, his wife, the 2
nd
accused
by doing money lending business was deriving size
able income but the same was not considered by the
Investigating Officer and as such the conclusion arrived
at by the Investigating Officer that the 2
nd
accused is an
ostensible owner of the properties standing in her name
and that the petitioner is the true owner of the said
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properties is absolutely wrong. The Investigating Officer
has categorically mentioned that in respect of the so
called money lending business no documents were
produced before him either by the petitioner or his wife
during investigation. Even in the present application
the petitioner has not claimed that there are documents
to establish the money lending business carried out by
his wife and the income derived by her through the
said business. The contentious issue as to whether the
petitioner wife was deriving income by doing money
lending business can be decided only during trial
based on the evidence placed in this regard. Hence this
court decides that above contention raised by the
petitioner is prematured one and thus cannot be
entertained at the stage of framing charges. On a
conspectus evaluation of the legal and factual aspects
involved in the case, this court decides that the claim of
the petitioner for an order of discharge alleging that the
Investigating Officer has erred in treating the properties
standing in the name of the petitioner’s wife as the
properties of the petitioner ignoring the separate income
of the petitioner’s wife through money lending business
is not sustainable under law.
12. (III).The methodology adopted by the Investigating
Officer in arriving at the total value of assets standing
in the name of the petitioner at the end of the check
period erroneous:
According to the petitioner the income derived by the
petitioner’s wife other than from S.K. Mat Industries
during the relevant period of Rs. 5,90,342/ but the
same has not been considered by the Investigating
Officer even though the same has been set out in the
IncomeTax returns submitted by the petitioner’s wife,
the 2
nd
accused Suguan. The petitioner further allege
that the properties of the petitioner’s wife and son more
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fully described in Statement II ought to have been
excluded but strangely the Investigating Officer has
included the same, which again clearly demonstrate
that computation has not been made in proper line.
Based on the above said contentions the petitioner
challenging the very methodology adopted by the
Investigating Officer, seek an order of discharge. As
elaborately discussed in the earlier part of this order,
the question as to whether the properties standing in
the name of the petitioner’s wife and son are in reality
their self acquired properties or whether those
properties were in fact acquired by the petitioner
through his financial resources can be decided only at
the time of trial based on the evidence adduced by both
parties in this regard. Since the nature of properties
standing in the name of the petitioner’s wife and son
cannot be decided at this stage, at no stretch of
imagination it can be contended that the methodology
adopted by the Investigating Officer in arriving at the
total value of assets and financial resources standing
in the name of the petitioner at the end of the check
period is erroneous.
13.Hence considering the materials available on record
in the back drop of the principles of law propounded by
our Apex Court in the case of Suresh Rajan referred
supra, this court decides that the petitioner is not
entitled for an order of discharge alleging that the
methodology adopted by the Investigating Officer is
erroneous.
14.In the present case the total value of the assets and
pecuniary resources of the petitioner and his family
members at the end of the checkperiod has been
computed by the Investigating Officer at
Rs.31,69,498/ as set out in Statement II. During
investigation of the case, the petitioner has not
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produced any documents before the Investigating
Officer except the IncomeTax returns of his wife, the
2
nd
accused, to trace the source of income of the
petitioner's wife to acquire the properties standing in
her name. Hence the Investigating Officer proceeded to
treat the properties standing in the name of the
petitioner's wife and his son as the properties of the
petitioner, which cannot be found fault at this stage
more so when the petitioner has not disclosed the
acquisition of properties by his wife to the concerned
department as required under the Tamil Nadu
Government Servants conduct rules. Hence this court,
at this stage, decides that there is no substance in the
contention of the petitioner that the methodology
adopted by the Investigating Officer in computing the
value of the assets of the petitioner is erroneous.
15. Conclusion :
The materials placed by the Investigating Officer
along with the Final Report disclose grave suspecion
against the petitioner of having committed the alleged
offence U / s 13 (1) (e) of the Prevention of Corruption
Act. The guilt or otherwise of the petitioner has to be
decided by court by affording an opportunity to the
prosecution to march in evidence in support of its case.
The materials placed by the Investigating Officer along
with the final report prima facie disclose the existence
of all the essential ingredients constituting the offence
U/s 13 (2) r/w 13 (1) (e) of the Prevention of Corruption
Act 1988. Hence this court decides that the petitioner is
not entitled for an order of discharge.
16. In the result the application is dismissed.”
16.Thus, while rejecting the discharge applications filed by the
13
respondents herein, the learned Special Judge recorded a
categorical finding that there was more than a prima facie case
against the accused persons to put them to trial for the alleged
offence. The learned Special Judge recorded a clear finding that the
charges levelled against the accused persons cannot be said to be
groundless so as to discharge them from the prosecution in exercise
of powers under Section 239 of the CrPC.
17.The respondents, being dissatisfied with the orders passed by
the Special Court rejecting their discharge applications, went before
the High Court and challenged the orders by filing Criminal
Revision Application Nos. 702 and 703 of 2016 resply. Both the
Revision Applications came to be heard by the High Court
analogously and came to be allowed by the common impugned
judgment and order dated 27.04.2017. The respondents herein
came to be discharged from the prosecution. While allowing the
Revision Applications, the High Court held as under :
“41. Taking into consideration all the relevant facts
and circumstances, this Court is of the view that the
Investigating Officer had not considered the
explanation submitted by the first accused and also not
taken into account any assets of the petitioners/ Al and
A2.
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42. This Court has also perused the statements of
the listed witnesses along with the impugned orders.
As already discussed in the foregoing paragraphs and
as decided in State of Maharashtra Vs Wasudeo (AIR
1981 SC 1186:19813sec199) cited supra, the nature
and the extent of burden cast on the accused is well
settled and the accused is not bound to prove his
innocence beyond all reasonable doubt. All that he
would do is to bring out a preponderance of probability.
In so far as this case is concerned, the petitioners have
brought out a preponderance of probability by way of
establishing their case. As enunciated in Explanation to
clause (e) of Sub Section (1) to Section 13, the
petitioners have intimated their income received from
lawful source to the income tax authorities concerned in
accordance with the provisions of the Income Tax Act,
which is applicable for the first accused being the
public servant to intimate his known source of income
and therefore, this Court is of the view that the
prosecution has miserably failed to make out a prima
facie case against the petitioners/ Al and A2.
43. It is the cardinal principle that the accused is
presumed to be innocent unless proved to be guilty by
the prosecution and the accused is entitled to the
benefit of every reasonable doubt. Thus, giving false
information or failing to prove his innocence is no
ground to base conviction of accused and on the
contrary it offends the very basic principle of criminal
jurisprudence which lays the burden on the prosecution
to prove the offence against the accused.
44. In criminal cases, the guilt should be proved
beyond any reasonable doubt that a reasonable man
with ordinary prudence can have. There should. be no
doubt whether the accused is guilty or not. If there is
15
slightest doubt, no matter how small it is, the benefit
will go to the accused. In Indian legal system the
provision regarding burden of proof and how it is to be
discharged are grandeurly laid down in Chapter VII of
the Evidence Act, 1872. The rule is that whoever
alleges a fact must prove it. In a criminal trail it is the
prosecution who alleges that the accused has
committed the offence with requisite mens rea and so
the burden lies upon the prosecution to prove the same.
45. As observed in the preceding paragraphs the
accused is not bound to prove his innocence beyond all
reasonable doubt. All that he has to do is, to bring out a
preponderance of probability. The phrase
'preponderance of probability' appears to have been
taken from Charless R.Cooper V F.W.Slade, (185759) 6
HLC 746. The observations made therein make it clear
that what 'preponderance of probability' means is 'more
probable and rational view of the case', not necessarily
as certain as the pleadings should be.
46. Section 397(1) confers a sort of supervisory
power. The purpose is to rectify miscarriage of justice.
The main consideration was whether substantial
justice was done since this Section confers the
revisional jurisdiction upon both the Sessions Court as
well as the High Court (Criminal). Nobody can claim it
as a matter of right as it confers supervisory
jurisdiction. When there is a clear illegality in the order
passed by the lower Court, a revision could be
entertained.
47. On coming to the provisions of Section 401 of
the Code, as it is understood, the object behind this
Section is to empower the High Court to exercise the
powers of an Appellate Court to prevent failure of
justice in cases where the Code does not provide for
16
appeal.
48. The power, however, is to be exercised only in
exceptional cases where there has been a miscarriage
of justice owing to :
I
(i) a defect in the procedure or
(ii) a manifest error on a point of law;
(iii) excess jurisdiction,
(iv) abuse of power, &
(v) where the decision upon which the trial Court relied
has since been reversed or overruled when the revision
petition was being heard.
49.As observed by the Supreme Court in State of M.P.
Vs. S.B.Johari, (AIR 2000 SC 665: (2000) 2 sec 57:
2000 SCC (Crl) 311 : 2000 Crl.L.J.944), under Section
401 of Criminal Procedure Code quashing of the charge
by the High Court would be justified if even on
considering the entire prosecution evidence, the offence
is not made out.
50. Viewing it from any angle, this Court is of
considered opinion that the prosecution has not made
out any case as against the petitioners/ Al and A2 to
proceed with.
51.In the result, Criminal Revision Case Nos. 702 and
703 of 2016 are allowed and the impugned orders,
dated 29.03.2016 and made in Crl.M.P.Nos.87 and 86
of 2014 in Special CC.No.76 of 2014 on the file of the
learned Special Judge (for Corruption Cases), Salem
are set aside and the petitions in Crl.M.P.Nos.87 and
86 of 2014 in Special CC.No.76 of 2014 are allowed.
The petitioners/ Al and A2 are discharged from the
clutches of the charges.”
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18.Thus, from the aforesaid, it appears that the High Court
thought fit to discharge both the accused essentially on the
following counts.
a)The Investigating Officer wrongly declined to consider the
explanation offered by the Respondent No. 1 as regards the
allegations and also failed to take into consideration the lawful
assets of the Respondents.
b)The accused persons had disclosed their income to the income
tax authorities in accordance with the provisions of the Income
Tax Act and, in such circumstances, no prima facie case could be
said to have been made out against them.
c)The accused in a prosecution under the Act 1988, more
particularly for the offences punishable under section 13(1)(e) of
the Act, is obliged only to explain as regards the alleged assets
disproportionate to the known sources of his income on the
principle of preponderance of probability.
d)As no prima facie case could be said to have been made out
against the accused persons, they deserve to be discharged from
the prosecution in exercise of revisional powers meant for doing
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substantial justice.
19. In view of the aforesaid, the State being aggrieved and
dissatisfied with the impugned orders passed by the High Court is
here before this Court with the present appeals.
SUBMISSIONS ON BEHALF OF THE APPELLANT
20. Mr. V. Krishnamurthy, the learned Additional Advocate
General appearing on behalf of the State vehemently submitted that
the High Court committed a serious error in discharging the
accused persons from the prosecution. He would submit that the
whole approach of the High Court, more particularly the finding
that “when the prosecuting agency has come forward with a specific
occasion, that the petitioners have amassed wealth which is
disproportionate to their known source of income, it is incumbent on
the part of the prosecution, to prove the indictment with clinching and
impeccable evidence beyond all reasonable doubts, because the
allegations made against the petitioners would definitely affect their
private rights and their selfrespect as well” is erroneous and
unsustainable.
21.He would submit that the High Court has erroneously cast a
19
burden on the prosecution to prove the case against the accused
persons beyond all reasonable doubt even at the stage of framing
charge. The scope and ambit of inquiry before framing the charge or
at the stage of discharge has been well settled by this Court.
22.He would submit that the High Court grossly erred in taking
into consideration the documents produced by the accused persons
in their defence such as the Income Tax Assessments of A2 and
other records, to come to the conclusion that the properties
disclosed therein ought to be eschewed from consideration. The
learned counsel submitted that the practice of looking into the
documents produced by the accused at the stage of framing of
charge has not been approved by this Court in the case of State of
Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568.
23.He would submit that the High Court could be said to have
conducted a mini trial while considering the discharge applications
filed by the accused persons. In other words, at the stage of framing
of charge, roving and fishing inquiry is impermissible and that
would defect the object of the Code.
24.In the last, he submitted that the High Court overlooked the
20
dictum as laid by this Court in the State of Tamil Nadu by
Inspector of Police, Vigilance and AntiCorruption vs. N. Suresh
Rajan and others, (2014) 11 SCC 709 @ 721 para 29, wherein this
Court held that:
“It is trite that at the stage of consideration of an
application for discharge, the court has to proceed with
an assumption that the materials brought on record by
the prosecution are true and evaluate the said
materials and documents with a view to find out
whether the facts emerging therefrom taken at their
face value disclose the existence of all the ingredients
constituting the alleged offence. At this stage, probative
value of the materials has to be gone into and the court
is not expected to go deep into the matter and hold that
the materials would not warrant a conviction. In our
opinion, what needs to be considered is whether there
is a ground for presuming that the offence has been
committed and not whether a ground for convicting the
accused has been made out. To put it differently, if the
court thinks that the accused might have committed the
offence on the basis of the materials on record on its
probative value, it can frame the charge; though for
conviction, the court has to come to the conclusion that
the accused has committed the offence. The law does
not permit a mini trial at this stage.”
25.In such circumstances referred to above, the learned counsel
appearing for the State prayed that there being merit in his two
appeals, those may be allowed and the impugned orders passed by
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the High Court may be set aside.
SUBMISSIONS ON BEHALF OF THE ACCUSED
26.Mr. K. Radhakrishnan, the learned senior counsel appearing
for the accused persons, on the other hand, vehemently opposed
both the appeals submitting that no error, not to speak of any error
of law, could be said to have been committed by the High Court in
passing the impugned orders discharging the accused persons from
the prosecution.
27.The learned senior counsel would submit that without
considering the explanation furnished by the respondent No. 1 and
without calling for any explanation from his wife (second accused),
the chargesheet for the offences punishable under Sections 13(2)
r/w 13(1)(e) of the Act 1988 and Section 109 of the IPC could not
have been filed. The learned counsel, relying on the decision of this
Court in the case of N. Suresh Rajan (supra), submitted as a
proposition of law that any property in the name of an income tax
assessee, by itself, cannot be a ground to assume that such
property belongs to the assessee.
22
28.He would submit that this Court in N. Suresh Rajan (supra)
was dealing with a factual situation wherein the parents of the
accused to whom the property belonged were not having any
independent source of income unlike in the facts of the present case
where the wife of the respondent is a commerce graduate and an
entrepreneur. She has her own independent source of income and
had purchased the properties out of her own income and that one
of those has been gifted by her father. She has been an income tax
assessee from the year 1990 and has been regularly filing her
income tax returns.
29.He would submit that the Investigating Officer failed to
consider the explanation furnished by the Respondent No. 1.
Relying on the decision of this Court in the case of State of
Maharashtra vs. Wasudeo Ramchandra Kaidalwar , (1981) 3
SCC 199, the learned counsel submitted that the nature and extent
of burden cast on the accused is not to prove his innocence beyond
reasonable doubt. All that the accused is obliged in law is to explain
on preponderance of probability. In so far as the present case is
concerned, the respondents have brought out a preponderance of
23
probability by way of establishing their case.
30. The learned counsel in his written submissions has stated as
under:
i.“In determining the assets of the respondent, the
assets standing in the name of his wife and their son
must be eschewed.
ii.Income of Tmt. Suguna, wife of the respondent R.
Soundirarasu could not be clubbed along with the
income of her husband when she is particularly having
independent source of income and pays income tax.
iii.Further, the investigating Officer has called for the
explanation from the respondent R. Soundirarasu,
which was not considered by the IO.
iv.However, the IO has not called for the explanation from
Tmt. Suguna. This approach of the IO is contrary to the
law laid down by this Hon’ble Court. This Hon’ble
Court in the case of Devine Retreat Centra Vs. State of
Kerala (2008) 3SCC 542, has held that no judicial
order can ever be passed by any court without
providing a reasonable opportunity of being heard to
the person likely to be affected by such order and
particularly when such order results drastic
consequences of affecting one’s own reputation.
v.RespondentR. Soundirarasu in his explanation had
explained that his wife Tmt. Suguna has independent
source of income. She is a commerce graduate and was
a partner in a S.K. Matt Industries along with one R.
Kumar with effect from 23.10.1993. The partnership
was dissolved on 31.3.2003 and thereafter she
continued as the sole proprietor. She had been paying
income tax from 1990 onwards and her IT returns were
scrutinized by the appropriate authorities. She had
24
been regularly filed her income tax returns even beyond
the end of the check period.
vi.It is respectfully submitted that the Investigating Officer
while collecting necessary details from both the income
tax authority as well as the respondent R.
Soundirarasu, had failed to consider them in proper
perspective which do establish that his wife Tmt.
Suguna had acquired properties from her own income.
But the investigating officer has erroneously stated in
the final report that she had no source of income and
that her father also did not possess any means to
acquire property.
15. It is submitted that Statement No. 1 appended to
the letter dated 16.10.2007 and the Charge Sheet is
the assets and pecuniary resources that stood to the
credit of respondent and his family members. The
check period, as per the prosecution has been
determined from 1.1.2002 to 31.3.2004. In statement
No. 1, 14 items have been shown. In so far as
Statement I is concerned, properties mentioned at item
Nos, 01,02,08,10,12 and 14 are exclusively the
investments of his wife out of her own resources.
16. It is submitted that in so far as Statement II is
concerned.
i.Item 1, the house was constructed at the cost of Rs.
4,15,344/ by respondent’s wife Tmt. S. Suguna from
her independent resources derived from S.K. Mat
Industries and other income and LIC Finance Housing
Loan.
ii.Item No. 2 was purchased by respondent’s wife out of
her independent income derived from S.K. Mat
Industries.
25
iii.Item no. 12, the Land measuring 0.67.
½ cents
comprised in Survey No. 12/1Q situated at M.
Chettipatti, Omalur Taluk, Salem District was inherited
by respondent’s mother Krishnammal and
subsequently settled this property in favour of her three
sons and thereby he had received 1/3
rd
share.
iv.Item No. 13 was purchased by respondent’s fatherin
law Thiru. T. Duraisamy with his own resources and
later gifted by way of dhana settlement to his son
Thiru. S.S.Saran Kumar on 16.02.2004. This property
should be taken into account as a gift and the value
thereof should not have been included in the
Statement.
v.Item No. 14, was inherited by respondent’s wife Tmt.
S.Suguna by virtue of Dhana settlement.
vi.Item No. 15 was purchased by respondent’s motherin
law Tmt. D. Shantha out of her own funds in the name
of his son and that neither he nor his wife had invested
any money in this transaction.
vii.Item Nos. 17, 18, were purchased by respondent’s wife
Tmt. S. Suguna out of her own resources.
viii.Items 19, 21 are related to respondent’s wife Tmt. S.
Suguna and the same cannot be attributed to the
respondent.
17. It is submitted that items 2, 3, 4, 5 of Schedule III
pertains to respondent’s wife Tmt. S. Suguna and the
same cannot be attributed to the respondent.
18. It is submitted that in respect of Statement IV,
i.Item No. 2, the expenditure towards repayment of LIC
housing loan to the extent of Rs. 1,19,934.30 cannot be
shown towards respondent’s expenditure as the loan
was availed and repaid by his wife Tmt. S. Suguna out
of her own resources.
26
ii.Similarly, the expenditure being Rs. 1,80,000/ shown
under item No. 3 should not have been shown in
respondent’s account, since the loan was obtained by
his wife independently and repaid so far with interest
by her, out of her own resources.
iii.Item No. 5, Telephone charges of Rs. 26,854/ were
paid by respondent’s wife out of her own resources.
iv.Item No. 10, the house tax was paid by respondent’s
wife out of her own resources.
v.Item No. 09, the transaction pertains to respondent’s
wife. Therefore, the loss should not have been shown in
respondent’s account.
vi.Item No. 11 is subscription towards Sri Ram Chits was
made by respondent’s wife out of her own resources.
vii.Item No. 12 the house tax for the house at Ganapathy
is paid by respondent’s wife out of her own resources.
viii.Item No. 14, the income tax paid by his respondent’s
wife out of her own resources has been shown in his
account.
19. It is submitted that the calculation made by the
petitioner is incorrect. It is submitted that the correct
computation as has been explained by the respondent
in his explanation is as follows,
i.The value of assets that stood to respondent’s credit as
well as to the credit of his family members at the
beginning of the check period is Rs. 1,31,254/.
ii.The value of the assets that stood to respondent’s
credit as well as to the credit of his family members at
the end of the check period is Rs. 1,37,430/
iii.Therefore, the value of assets acquired during the
check period is Rs. 6,176/.
27
iv.Income derived by him and his family members during
the check period is Rs. 3,11,547/.
v.Expenditure during the check period is Rs. 1,91,910/.
vi.Thus, the savings during the check period is Rs.
1,19,636.80
Therefore, it is submitted that the assets acquired by
the respondent (R. Soundirarasu) are not
disproportionate to his known source of income.
20. It is submitted that in his explanation respondent
(R. Soundirarasu), has referred to the provisions of the
Tamil Nadu Government Servant Conduct Rules 1973
as amended up to September 2006, Rules 7 (1) (a),
which reads as follows:
(1)(a) No Government servant, shall except after notice
to the prescribed authority, acquire or dispose of any
immovable property by lease, mortgage, purchase,
sale, gift, exchange or otherwise either in his own name
or in the name of any member of his family.
Such a notice will be necessary even where any
immovable property is acquired by any member of the
family of the Government servant out of the resources
of the Government servant:
Provided that the previous sanction of the prescribed
authority shall not be necessary for the acquisition of
immovable property in respect of housesite assigned
by the Government in favour of the Government
servant.
ExplanationA Government servant is not required to
give notice to the prescribed authority or seek prior
28
permission from the prescribed authority for acquisition
or disposal of immovable properties by the members of
his family under clause (a), if the immovable property in
question is not acquired from the resources of the
Government servant concerned.
The IO ought to have considered this provision before
taking the properties and other resources into account.
21. It is respectfully submitted that the High Court has
decided the matter by following the principles of law
laid down by this Hon’ble Court. The High Court has
only looked at the materials relied upon in the
chargesheet to ascertain whether a prima facie case is
made out or not. It is submitted that the High Court has
rightly arrived at the conclusion that the prosecution
has not examined the materials and the explanation
afforded by the respondent. After examining the facts
emerging from of the materials brought on record by the
prosecution, the High Court has concluded that prima
facie the materials on record does not disclose the
existence of all the ingredients constituting the offences
alleged against the respondents. The High Court has
rightly concluded that the evidences tagged along with
the final report are also not in consonance with the
accusation made in the final report. The High Court has
rendered the judgment discharging the accused to
avert miscarriage of justice and to erase the prejudice
caused to the accused at the instance of the
investigating officer by not examining the explanation
rendered by the first accused in proper perspective and
without calling for the explanation from the second
accused. Prejudice is also caused by the finding of the
Special judge to the effect that there are no materials/
evidence to prove that the second accused has
separate and independent source of income.”
(Emphasis supplied)
29
In such circumstances referred to above, the learned counsel
prayed that there being no merit in the two appeals filed by the
State, those may be dismissed.
31.If we have to give a fair idea as regards the case put up by the
Prosecution against the accused persons, we may do so as under:
(a)There are 14 items shown in the Statement No. 1, i.e. Assets
and pecuniary sources that stood to the credit of the accused
and his family members at the beginning of the check period
i.e., 01.01.2002 such as lands, house sites, shares, jewels and
other movables valued at Rs.3,46,00600.
(b)There are 21 items shown in the Statement No. II i.e., assets
and pecuniary source that stood to the credit of the accused
and his family members at the end of the check period as on
31.03.2004, valued at Rs. 31,69,49800.
(c)There are 6 items shown in the Statement No. III as income
derived by the accused and his family members during the
check period i.e., 01012002 to 31032004, calculated at Rs.
9,97,88800.
30
(d)There are 15 items shown in the Statement No. IV i.e.,
expenditure incurred by the accused and his family members
during the check period from 01012002 to 31032004 as
family consumption expenditure, education, electricity
charges, housing loan, LIC premiums, telephone charges etc.
is calculated at Rs. 6,16,37650.
(e)The value of assets acquired by the accused and his family
members at the end of the check period i.e., 31032004 as
shown in Statement No. V is at Rs. 28,23,49200 (i.e. Rs.
31,69,498 () Rs. 3,46,00600).
(f)The likely savings of the accused and his family members
during the check period as shown in Statement No. VI is
arrived at Rs. 3,81,51200 (i.e.,) Rs. 9,97,88800 () Rs.
6,16,37650).
(g)The value of disproportionate assets acquired by the accused
and his family members as shown in the Statement No. VII is
calculated at Rs. 24,41,98000.
(h)The percentage of disproportionate assets acquired by the
31
accused and his family members to the known sources of their
income is calculated at 244.71% (Rs.24,41,98000 divided by
Rs.9,97,88800 multiplied by 100).
Thus, in view of the aforesaid, the case of the prosecution is
that the accused No. 1 (public servant) was found to be in
possession of assets disproportionate to the known sources of his
income to the extent to Rs. 24,41,980/ as on 31.03.2004.
ANALYSIS
32. Having heard the learned counsel appearing for the parties
and having gone through the materials on record, the only question
that falls for our consideration is whether the High Court
committed any error in discharging both the accused from the
charges levelled against them?
33.We have no hesitation in observing that the impugned orders
passed by the High Court are utterly incomprehensible. We shall
explain in details why we say so.
PREVENTION OF CORRUPTION ACT, 1988
34. Section 13(1)(e) of the Act 1988 including explanation thereto
reads as under :
32
“13. Criminal misconduct by a public servant.
(1) A public servant is said to commit the offence of
criminal misconduct,
(e) if he or any person on his behalf, is in possession or
has, at any time during the period of his office, been in
possession for which the public servant cannot
satisfactorily account, of pecuniary resources or
property disproportionate to his known sources of
income.
Explanation. For the purposes of this section, “known
sources of income” means income received from any
lawful source and such receipt has been intimated in
accordance with the provisions of any law, rules or
orders for the time being applicable to a public servant.”
35.The explanation to Section 13(1)(e) defines the expression
“known sources of income” and states that this expression means
the income received from any lawful source and also requires that
the receipt should have been intimated by the public servant in ac
cordance with any provisions of law, rules or orders for the time be
ing applicable to a public servant. This explanation was not there in
the Prevention of Corruption Act, 1947 (for short, “Act 1947”).
Noticing this fact in Jagan M. Seshadri v. State of Tamil Nadu,
(2002) 9 SCC 639, this Court has observed as under:
"7. A bare reading of Section 30(2) of the 1988 Act
shows that any act done or any action taken or pur
ported to have been done or taken under or in pur
33
suance of the repealed Act, shall, insofar as it is not in
consistent with the provisions of this Act, be deemed to
have been done or taken under or in pursuance of the
corresponding provisions of the Act. It does not substi
tute Section 13 in place of Section 5 of the 1947
Act. Section 30(2) is applicable "without prejudice to the
application of Section 6 of the General Clauses Act,
1897". In our opinion, the application of Section 13 of
the 1988 Act to the fact situation of the present case
would offend Section 6 of the General Clauses Act,
which, inter alia provides that repeal shall not (i) affect
the previous operation of any enactment so repealed or
anything duly done or suffered thereunder, or (ii) affect
any investigation, legal proceedings or remedy in re
spect of any such rights, privilege, obligation, penalty,
forfeiture or punishment. Section 13, both in the matter
of punishment as also by the addition of the Explana
tion to Section 13(1)(e) is materially different from Sec
tion 5 of the 1947 Act. The presumption permitted to be
raised under the Explanation to Section 13(1)(e) was
not available to be raised under Section 5(1)(e) of the
1947 Act. This difference can have a material bearing
on the case."
36. The explanation to Section 13(1)(e) of the Act 1988 has the ef
fect of defining the expression “known sources of income” used
in Section 13(1)(e) of the Act 1988. The explanation to Section 13(1)
(e) of the Act 1988 consists of two parts. The first part states that
the known sources of income means the income received from any
lawful source and the second part states that such receipt should
have been intimated by the public servant in accordance with the
34
provisions of law, rules and orders for the time being applicable to a
public servant.
37. Referring to the first part of the expression "known sources of
income" in N. Ramakrishnaiah v. State of A.P ., 2009 Crl.L.J.
1767, this Court observed as under:
"15. The emphasis of the phrase "known sources of in
come" in Section 13(1)(e) (old Section 5(1)(e)) is clearly
on the word "income". It would be primary to observe
that qua the public servant, the income would be what
is attached to his office or post, commonly known as re
muneration or salary. The term "income" by itself, is
classic and has a wide connotation. Whatever comes in
or is received is income. But, however, wide the import
and connotation of the term "income", it is incapable of
being understood as meaning receipt having no nexus
to one's labour, or expertise, or property, or investment,
and being further a source which may or may not yield
a regular revenue. These essential characteristics are
vital in understanding the term "Income". Therefore, it
can be said that, though "income" in receipt in the hand
of its recipient, every receipt would not partake into the
character of income. For the public servant, whatever
return he gets of his service, will be the primary item of
his income. Other income which can conceivably be in
come qua the public servant will be in the regular re
ceipt from (a) his property, or (b) his investment. A re
ceipt from windfall, or gains of graft crime or immoral
secretions by persons prima facie would not be receipt
for the "known source of income" of a public servant.”
35
38. The above brings us to the second part of the explanation,
defining the expression “such receipt should have been intimated
by the public Servant” i.e. intimation by the public servant in accor
dance with any provisions of law, rules or orders applicable to a
public servant.
39.The language of the substantive provisions of Section 5(3) of
the Act 1947 before its amendment, Section 5 (1)(e) of the Act 1947
and 13(1)(e) of the Act 1988 continues to be the same though
Section 5(3) before it came to be amended was held to be a
procedural Section in the case of Sajjan Singh v. State of Punjab,
AIR 1964 SC 464. Section 5(3) of the Act 1947 before it came to be
amended w.e.f. 18
th
December, 1964 was interpreted in the case of
C.D.S. Swami v. State, AIR 1960 SC 7, and it was observed:
“5. Reference was also made to cases in which courts
had held that if plausible explanation had been offered
by an accused person for being in possession of prop
erty which was the subjectmatter of the charge, the
court could exonerate the accused from criminal respon
sibility for possessing incriminating property. In our
opinion, those cases have no bearing upon the charge
against the appellant in this case, because the section
requires the accused person to "satisfactorily account"
for the possession of pecuniary resources or property
disproportionate to his known sources of income. Ordi
36
narily, an accused person is entitled to acquittal if he
can account for honest possession of property which
has been proved to have been recently stolen (see illus
tration (a) to Section 114 of the Indian Evidence Act,
1872). The rule of law is that if there is a prima facie
explanation of the accused that he came by the stolen
goods in an honest way, the inference of guilty knowl
edge is displaced. This is based upon the well estab
lished principle that if there is a doubt in the mind of
the court as to a necessary ingredient of an offence, the
benefit of that doubt must go to the accused. But the
legislature has advisedly used the expression "satisfac
torily account". The emphasis must be on the word "sat
isfactorily", and the legislature has, thus, deliberately
cast a burden on the accused not only to offer a plausi
ble explanation as to how he came by his large wealth,
but also to satisfy the court that his explanation was
worthy of acceptance.
6. Another argument bearing on the same aspect of the
case, is that the prosecution has not led evidence to
show as to what are the known sources of the appel
lant’s income. In this connection, our attention was in
vited to the evidence of the investigating officers, and
with reference to that evidence, it was contended that
those officers have not said, in terms, as to what were
the known sources of income of the accused, or that the
salary was the only source of his income. Now, the ex
pression "known sources of income" must have refer
ence to sources known to the prosecution on a thorough
investigation of the case. It was not, and it could not
be, contended that "known sources of income" means
sources known to the accused. The prosecution cannot,
in the very nature of things, be expected to know the af
fairs of an accused person. Those will be matters "spe
cially within the knowledge" of the accused, within the
meaning of Section 106 of the Evidence Act. The prose
37
cution can only lead evidence, as it has done in the in
stant case, to show that the accused was known to
earn his living by service under the Government during
the material period. The prosecution would not be justi
fied in concluding that travelling allowance was also a
source of income when such allowance is ordinarily
meant to compensate an officer concerned for his out
ofpocket expenses incidental to journeys performed by
him for his official tours. That could not possibly be al
leged to be a very substantial source of income. The
source of income of a particular individual will depend
upon his position in life with particular reference to his
occupation or avocation in life. In the case of a govern
ment servant, the prosecution would, naturally, infer
that his known source of income would be the salary
earned by him during his active service. His pension or
his provident fund would come into calculation only af
ter his retirement, unless he had a justification for bor
rowing from his provident fund. We are not, therefore,
impressed by the argument that the prosecution has
failed to lead proper evidence as to the appellant’s
known sources of income. It may be that the accused
may have made statements to the investigating officers
as to his alleged sources of income, but the same,
strictly, would not be evidence in the case, and if the
prosecution has failed to disclose all the sources of in
come of an accused person, it is always open to him to
prove those other sources of income which have not
been taken into account or brought into evidence by the
prosecution.”
(Emphasis supplied)
40. Even after Section 5(3) was deleted and Section 5(1)(e) was en
acted, this Court in the case of Wasudeo Ram Chandra Kaidal
war (supra) has observed that the expression "known sources of
38
income" occurring in Section 5(1)(e) has a definite legal connotation
which in the context must mean the sources known to the prosecu
tion and not sources relied upon and known to the accused. Sec
tion 5(1)(e), it was observed by this Court, casts a burden on the ac
cused for it uses the words "for which the public servant cannot
satisfactorily account". The onus is on the accused to account
for and satisfactorily explain the assets. Accordingly, in Wasudeo
Ram Chandra Kaidalwar (supra) it was observed:
"11. The provisions of Section 5(3) have been subject of
judicial interpretation. First the expression "known
sources of income" in the context of Section 5(3) meant
"sources known to the prosecution". The other principle
is equally well settled. The onus placed on the accused
under Section 5(3) was, however, not to prove his inno
cence beyond reasonable doubt, but only to establish a
preponderance of probability. These are the wellsettled
principles: see C.S.D. Swamy v. State; Sajjan Singh v.
State of Punjab and V.D. Jhingan v. State of U.P.
The legislature thought it fit to dispense with the rule of
evidence under Section 5(3) and make the possession
of disproportionate assets by a public servant as one of
the species of the offence of criminal misconduct by in
serting Section 5(1)(e) due to widespread corruption in
public services.
12. The terms and expressions appearing in Section
5(1)(e) of the Act are the same as those used in the
old Section 5(3). Although the two provisions operate in
two different fields, the meaning to be assigned to them
39
must be the same. The expression "known sources of
incomes" means "sources known to the prosecution". So
also, the same meaning must be given to the words "for
which the public servant cannot satisfactorily account"
occurring in Section 5(1)(e). No doubt, Section 4(1) pro
vides for presumption of guilt in cases falling un
der Section 5(1)(a) and (b), but there was, in our opin
ion, no need to mention Section 5(1)(e) therein. For, the
reason is obvious. The provision contained in Section
5(1)(e) of the Act is a selfcontained provision. The first
part of the section casts a burden on the prosecution
and the second on the accused. When Section 5(1)
(e) uses the words "for which the public servant cannot
satisfactorily account", it is implied that the burden is
on such public servant to account for the sources for the
acquisition of disproportionate assets. The High Court,
therefore, was in error in holding that a public servant
charged for having disproportionate assets in his pos
session for which he cannot satisfactorily account, can
not be convicted of an offence under Section 5(2) read
with Section 5(1)(e) of the Act unless the prosecution
disproves all possible sources of income.
13. That takes us to the difficult question as to the na
ture and extent of the burden of proof under Section
5(1)(e) of the Act. The expression "burden of proof" has
two distinct meanings (1) the legal burden i.e. the bur
den of establishing the guilt, and (2) the evidential bur
den i.e. the burden of leading evidence. In a criminal
trial, the burden of proving everything essential to es
tablish the charge against the accused lies upon the
prosecution, and that burden never shifts. Notwith
standing the general rule that the burden of proof lies
exclusively upon the prosecution, in the case of certain
offences, the burden of proving a particular fact in is
sue may be laid by law upon the accused. The burden
resting on the accused in such cases is, however, not
40
so onerous as that which lies on the prosecution and is
discharged by proof of a balance of probabilities. The
ingredients of the offence of criminal misconduct un
der Section 5(2) read with Section 5(1)(e) are the pos
session of pecuniary resources or property dispropor
tionate to the known sources of income for which the
public servant cannot satisfactorily account. To sub
stantiate the charge, the prosecution must prove the fol
lowing facts before it can bring a case under Section
5(1)(e) , namely, (1) it must establish that the accused is
a public servant, (2) the nature and extent of the pecu
niary resources or property which were found in his
possession, (3) it must be proved as to what were his
known sources of income i.e. known to the prosecution,
and (4) it must prove, quite objectively, that such re
sources or property found in possession of the accused
were disproportionate to his known sources of income.
Once these four ingredients are established, the offence
of criminal misconduct under Section 5(1)(e) is complete,
unless the accused is able to account for such re
sources or property. The burden then shifts to the ac
cused to satisfactorily account for his possession of dis
proportionate assets. The extent and nature of burden
of proof resting upon the public servant to be found in
possession of disproportionate assets under Section
5(1)(e) cannot be higher than the test laid by the Court
in Jhingan case i.e. to establish his case by a prepon
derance of probability. That test was laid down by the
court following the dictum of Viscount Sankey, L.C., in
Woolmington v. Director of Public Prosecution. The High
Court has placed an impossible burden on the prosecu
tion to disprove all possible sources of income which
were within the special knowledge of the accused. As
laid down in Swamy case, the prosecution cannot, in
the very nature of things, be expected to know the af
fairs of a public servant found in possession of re
sources or property disproportionate to his known
41
sources of income i.e. his salary. Those will be matters
specially within the knowledge of the public servant
within the meaning of Section 106 of the Evidence Act,
1872. Section 106 reads:
"When any fact is especially within the knowledge of
any person, the burden of proving that fact is upon
him.”
In this connection, the phrase the burden of proof is
clearly used in the secondary sense namely, the duty
of introducing evidence. The nature and extent of the
burden cast on the accused is well settled. The ac
cused is not bound to prove his innocence beyond all
the reasonable doubt. All that he need to do is to bring
out a preponderance of probability.”
41. While the expression "known sources of income" refers to the
sources known to the prosecution, the expression "for which the
public servant cannot satisfactorily account" refers to the onus or
burden on the accused to satisfactorily explain and account for the
assets found to be possessed by the public servant. This burden is
on the accused as the said facts are within his special knowl
edge. Section 106 of the Evidence act applies. The explanation
to Section 13(1)(e) is a procedural Section which seeks to define the
expression "known sources of income" as sources known to the
prosecution and not to the accused. The explanation applies and re
42
lates to the mode and manner of investigation to be conducted by
the prosecution, it does away with the requirement and necessity of
the prosecution to have an open, wide and rowing investigation and
enquire into the alleged sources of income which the accused may
have. It curtails the need and necessity of the prosecution to go into
the alleged sources of income which a public servant may or possi
bly have but are not legal or have not been declared. The unde
clared alleged sources are by their very nature are expected to be
known to the accused only and are within his special knowledge.
The effect of the explanation is to clarify and reinforce the existing
position and understanding of the expression "known sources of in
come" i.e. the expression refers to sources known to the prosecution
and not sources known to the accused. The second part of the ex
planation does away with the need and requirement for the prose
cution to conduct an open ended or rowing enquiry or investigation
to find out all alleged/claimed known sources of income of an ac
cused who is investigated under the PC Act, 1988. The prosecution
can rely upon the information furnished by the accused to the au
thorities under law, rules and orders for the time being applicable
43
to a public servant. No further investigation is required by the pros
ecution to find out the known sources of income of the accused
public servant. As noticed above, the first part of the explanation
refers to income received from legal/lawful sources. This first part
of the expression states the obvious as is clear from the judgment of
this Court in N. Ramakrishnaiah (supra).(Emphasis supplied)
42. Thus, it is evident from the aforesaid that the expression
“known source of income” is not synonymous with the words “for
which the public servant cannot satisfactorily account.” The two
expressions connote and have different meaning, scope and
requirements.
43.In the case of Central Bureau of Investigation (CBI) and
Anr. v. Thommandru Hannah Vijayalakshmi @ T.H.
Vijayalakshmi and Anr ., reported in 2021 SCC OnLine SC 923,
this Court, after an exhaustive review of its various other decisions,
more particularly the decision in the case of K. Veeraswami v.
Union of India, (1991) 3 SCC 655, held that since the accused
public servant does not have a right to be afforded a chance to
explain the alleged Disproportionate Assets to the investigating
44
officer before the filing of a chargesheet, a similar right cannot be
granted to the accused before the filing of an FIR by making a
preliminary inquiry mandatory.
44.The above decision of this Court in the case of Thommandru
Hannah Vijayalakshmi @ T.H. Vijayalakshmi (supra) is a direct
answer to the contention raised on behalf of the accused persons
that the investigating officer wrongly declined to consider the
explanation offered by the public servant in regard to the
allegations and also failed to take into consideration the assets
lawfully acquired by his wife.
45.In K. Veeraswami (supra), this Court held thus:
“75…since the legality of the chargesheet has been
impeached, we will deal with that contention also.
Counsel laid great emphasis on the expression for
―
which he cannot satisfactorily account used in
―
clause (e) of Section 5(1) of the Act. He argued that that
term means that the public servant is entitled to an
opportunity before the Investigating Officer to explain
the alleged disproportionality between assets and the
known sources of income. The Investigating Officer is
required to consider his explanation and the charge
sheet filed by him must contain such averment. The
failure to mention that requirement would vitiate the
chargesheet and renders it invalid. This submission, if
we may say so, completely overlooks the powers of the
Investigating Officer. The Investigating Officer is only
45
required to collect material to find out whether the
offence alleged appears to have been committed. In the
course of the investigation, he may examine the
accused. He may seek his clarification and if
necessary, he may cross check with him about his
known sources of income and assets possessed by
him. Indeed, fair investigation requires as rightly stated
by Mr. A.D. Giri, learned Solicitor General, that the
accused should not be kept in darkness. He should be
taken into confidence if he is willing to cooperate. But to
state that after collection of all material the
Investigating Officer must give an opportunity to the
accused and call upon him to account for the excess of
the assets over the known sources of income and then
decide whether the accounting is satisfactory or not,
would be elevating the Investigating Officer to the
position of an enquiry officer or a judge. The
Investigating Officer is not holding an enquiry against
the conduct of the public servant or determining the
disputed issues regarding the disproportionality
between the assets and the income of the accused. He
just collects material from all sides and prepares a
report which he files in the court as chargesheet.”
(Emphasis supplied)
46.The second contention canvassed on behalf of the accused
persons that every bit of information in regard to the assets had
been intimated to the Income Tax Authorities and the documents in
regard to the same should be sufficient to exonerate the accused
persons from the charges is without any merit. In other words, the
contention that the High Court rightly took into consideration the
46
aforesaid for the purpose of discharging the accused persons from
the prosecution is without any merit and erroneous more
particularly in view of the decision of this Court in the case of
Thommandru Hannah Vijayalakshmi @ T.H. Vijayalakshmi
(supra). This Court has observed in paras 58, 60 & 61 resply as
under:
“58. On the other hand, it has been argued on behalf of
the appellant that the documents relied upon by the
respondents are not unimpeachable and have to be
proved at the stage of trial. Hence, it was urged that
the arguments made on the basis of these documents
should not be accepted by this Court. The appellant
has relied upon the judgment of a two Judge Bench of
this Court in J. Jayalalitha (supra), where it has been
held that documents such as Income Tax Returns
cannot be relied upon as conclusive proof to show that
the income is from a lawful source under the PC Act.
Justice P C Ghose held thus:
“191. Though considerable exchanges had been made
in course of the arguments, centering around Section 43
of the Evidence Act, 1872, we are of the comprehension
that those need not be expatiated in details. Suffice it to
state that even assuming that the income tax returns,
the proceedings in connection therewith and the
decisions rendered therein are relevant and admissible
in evidence as well, nothing as such, turns thereon
definitively as those do not furnish any guarantee or
authentication of the lawfulness of the source(s) of
income, the pith of the charge levelled against the
respondents. It is the plea of the defence that the
47
income tax returns and orders, while proved by the
accused persons had not been objected to by the
prosecution and further it (prosecution) as well had
called in evidence the income tax returns/orders and
thus, it cannot object to the admissibility of the records
produced by the defence. To reiterate, even if such
returns and orders are admissible, the probative value
would depend on the nature of the information
furnished, the findings recorded in the orders and
having a bearing on the charge levelled. In any view of
the matter, however, such returns and orders would
not ipso facto either conclusively prove or disprove the
charge and can at best be pieces of evidence which
have to be evaluated along with the other materials on
record. Noticeably, none of the respondents has been
examined on oath in the case in hand. Further, the
income tax returns relied upon by the defence as well
as the orders passed in the proceedings pertaining
thereto have been filed/passed after the chargesheet
had been submitted. Significantly, there is a charge of
conspiracy and abetment against the accused persons.
In the overall perspective therefore neither the income
tax returns nor the orders passed in the proceedings
relatable thereto, either definitively attest the
lawfulness of the sources of income of the accused
persons or are of any avail to them to satisfactorily
account the disproportionateness of their pecuniary
resources and properties as mandated by Section 13(1)
(e) of the Act. In Vishwanath Chaturvedi (3) v. Union of
India [Vishwanath Chaturvedi (3) v. Union of India,
(2007) 4 SCC 380 : (2007) 2 SCC (Cri) 302] , a writ
petition was filed under Article 32 of the Constitution of
India seeking an appropriate writ for directing the
Union of India to take appropriate action to prosecute
R2 to R5 under the 1988 Act for having amassed
assets disproportionate to the known sources of income
by misusing their power and authority. The
48
respondents were the then sitting Chief Minister of U.P.
and his relatives. Having noticed that the basic issue
was with regard to alleged investments and sources of
such investments, Respondents 2 to 5 were ordered by
this Court to file copies of income tax and wealth tax
returns of the relevant assessment years which was
done. It was pointed out on behalf of the petitioner that
the net assets of the family though were Rs
9,22,72,000, as per the calculation made by the official
valuer, the then value of the net assets came to be Rs
24 crores. It was pleaded on behalf of the respondents
that income tax returns had already been filed and the
matters were pending before the authorities concerned
and all the payments were made by cheques, and thus
the allegation levelled against them were baseless. It
was observed that the minuteness of the details
furnished by the parties and the income tax returns
and assessment orders, sale deeds, etc. were
necessary to be carefully looked into and analyzed
only by an independent agency with the assistance of
chartered accountants and other accredited engineers
and valuers of the property. It was observed that the
Income Tax Department was concerned only with the
source of income and whether the tax was paid or not
and, therefore, only an independent agency or CBI
could, on court direction, determine the question of
disproportionate assets. CBI was thus directed to
conduct a preliminary enquiry into the assets of all the
respondents and to take further action in the matter
after scrutinizing as to whether a case was made out or
not. This decision is to emphasize that submission of
income tax returns and the assessments orders passed
thereon, would not constitute a foolproof defence
against a charge of acquisition of assets
disproportionate to the known lawful sources of income
as contemplated under the PC Act and that further
scrutiny/analysis thereof is imperative to determine as
49
to whether the offence as contemplated by the PC Act is
made out or not.
x x x x x
60. At the very outset, we must categorically hold that
the documents which have been relied upon by the
respondents cannot form the basis of quashing the FIR.
The value and weight to be ascribed to the documents
is a matter of trial. Both the parties have cited previous
decisions of two Judge Benches of this Court in order to
support their submissions. There is no clash between
the decisions in Kedari Lal (supra) and J. Jayalalitha
(supra) for two reasons: (i) the judgment in J.
Jayalalitha (supra) notes that a document like the
Income Tax Return, by itself, would not be definitive
evidence in providing if the source of one‘s income
―
was lawful since the Income Tax Department is not
responsible for investigating that, while the facts in the
judgment in Kedari Lal (supra) were such that the
source of the income was not in question at all and
―
hence, the Income Tax Returns were relied upon
conclusively; and (ii) in any case, the decision in Kedari
Lal (supra) was delivered while considering a criminal
appeal challenging a conviction under the PC Act, while
the present matter is at the stage of quashing of an
FIR.
61. In the present case, the appellant is challenging the
very source of the respondents‘ income and the
―
questioning the assets acquired by them based on such
income. Hence, at the stage of quashing of an FIR
where the Court only has to ascertain whether the FIR
prima facie makes out the commission of a cognizable
offence, reliance on the documents produced by the
respondents to quash the FIR would be contrary to
fundamental principles of law. The High Court has
50
gone far beyond the ambit of its jurisdiction by virtually
conducting a trial in an effort to absolve the
respondents.”
(Emphasis supplied)
47.Now, the reason why we say that the impugned orders passed
by the High Court are utterly incomprehensible is because the High
Court has not been able to comprehend the true scope and ambit of
Section 239 of the CrPC. The High Court has also not been able to
comprehend in what set of circumstances the revisional powers
under Section 397 read with Section 401 of the CrPC are to be
exercised.
48. We have gathered an impression that the High Court seems to
be labouring under a serious misconception of law as is evident
from the two impugned orders and such erroneous misconceptions
need to be eradicated.
49.The learned counsel appearing for the State rightly submitted
that at the stage of consideration of discharge under Section 239 of
the CrPC only a prima facie case is to be seen and the Special Court
having recorded a satisfaction with regard to the existence of a
prima facie case there cannot be said to be any material error or
illegality in the orders assailed before the High Court.
51
50. The procedure for trial of warrant cases by Magistrate is
provided for under Chapter XIX of the CrPC and Sections 239 and
240 resply relate to discharge and framing of charge.
51.The primary consideration at the stage of framing of charge is
the test of existence of a prima facie case, and at this stage, the
probative value of materials on record is not to be gone into.
52.The provisions which deal with the question of framing of
charge or discharge, relatable to: (i) a sessions trial or, (ii) a trial of
warrant case, or (iii) a summons case, are contained in three pairs
of Sections under the CrPC. These are Sections 227 and 228 resply
in so far as, the sessions trial is concerned; Sections 239 and 240
resply relatable to the trial of warrant cases; and Sections 245(1)
and 245(2) resply in respect of summons case. The relevant
provisions read as follows:
“Section 227. Discharge If, upon consideration of the
record of the case and the documents submitted
therewith, and after hearing the submissions of the
accused and the prosecution in this behalf, the Judge
considers that there is not sufficient ground for
proceeding against the accused, he shall discharge the
accused and record his reasons for so doing.
52
Section 228. Framing of charge.—(1) If, after such
consideration and hearing as aforesaid, the Judge is of
opinion that there is ground for presuming that the
accused has committed an offence which—
(a) is not exclusively triable by the Court of
Session, he may, frame a charge against the
accused and, by order, transfer the case for trial
to the Chief Judicial Magistrate, or any other
Judicial Magistrate of the first class and direct the
accused to appear before the Chief Judicial
Magistrate, or, as the case may be, the Judicial
Magistrate of the first class, on such date as he
deems fit, and thereupon such Magistrate shall
try the offence in accordance with the procedure
for the trial of warrantcases instituted on a police
report;
(b) is exclusively triable by the Court, he shall
frame in writing a charge against the accused.
(2) Where the Judge frames any charge under
clause (b) of subsection (1), the charge shall be read
and explained to the accused, and the accused
shall be asked whether he pleads guilty of the
offence charged or claims to be tried.
Section 239. When accused shall be discharged .—
If, upon considering the police report and the documents
sent with it under Section 173 and making such
examination, if any, of the accused as the Magistrate
thinks necessary and after giving the prosecution and
the accused an opportunity of being heard, the
Magistrate considers the charge against the accused to
be groundless, he shall discharge the accused, and
record his reasons for so doing.
53
Section 240. Framing of charge.—(1) If, upon such
consideration, examination, if any, and hearing, the
Magistrate is of opinion that there is ground for
presuming that the accused has committed an offence
triable under this Chapter, which such Magistrate is
competent to try and which, in his opinion, could be
adequately punished by him, he shall frame in writing a
charge against the accused.
(2) The charge shall then be read and explained to the
accused, and he shall be asked whether he pleads
guilty of the offence charged or claims to be tried.
Section 245. When accused shall be discharged .—
(1) If, upon taking all the evidence referred to in Section
244, the Magistrate considers, for reasons to be
recorded, that no case against the accused has been
made out which, if unrebutted, would warrant his
conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a
Magistrate from discharging the accused at any
previous stage of the case if, for reasons to be recorded
by such Magistrate, he considers the charge to be
groundless.”
53. The aforestated Sections indicate that the CrPC contemplates
discharge of the accused by the Court of Sessions under Section
227 in a case triable by it, cases instituted upon a police report are
covered by Section 239 and cases instituted otherwise than on a
police report are dealt with in Section 245. The three Sections
contain somewhat different provisions in regard to discharge of the
54
accused. As per Section 227, the trial judge is required to discharge
the accused if “the Judge considers that there is not sufficient
ground for proceeding against the accused”. The obligation to
discharge the accused under Section 239 arises when “the
Magistrate considers the charge against the accused to be
groundless”. The power to discharge under Section 245(1) is
exercisable when “the Magistrate considers, for reasons to be
recorded, that no case against the accused has been made out
which, if unrebutted would warrant his conviction”. Sections 227
and 239 resply provide for discharge being made before the
recording of evidence and the consideration as to whether the
charge has to be framed or not is required to be made on the basis
of the record of the case, including the documents and oral hearing
of the accused and the prosecution or the police report, the
documents sent along with it and examination of the accused and
after affording an opportunity to the parties to be heard. On the
other hand, the stage for discharge under Section 245 is reached
only after the evidence referred to in Section 244 has been taken.
54. Despite the slight variation in the provisions with regard to
55
discharge under the three pairs of Sections referred to above, the
settled legal position is that the stage of framing of charge under
either of these three situations, is a preliminary one and the test of
“prima facie” case has to be applied — if the trial court is satisfied
that a prima facie case is made out, charge has to be framed.
55.The nature of evaluation to be made by the court at the stage
of framing of charge came up for consideration of this Court in
Onkar Nath Mishra and others v. State (NCT of Delhi) and
another, (2008) 2 SCC 561, and referring to its earlier decisions in
the State of Maharashtra v. Som Nath Thapa , (1996) 4 SCC
659, and the State of M.P. v. Mohanlal Soni, (2000) 6 SCC 338,
it was held that at that stage, the Court has to form a presumptive
opinion as to the existence of the factual ingredients constituting
the offence alleged and it is not expected to go deep into the
probative value of the materials on record. The relevant
observations made in the judgment are as follows:
"11. It is trite that at the stage of framing of charge the
court is required to evaluate the material and documents
on record with a view to finding out if the facts emerging
therefrom, taken at their face value, disclosed the
existence of all the ingredients constituting the alleged
56
offence. At that stage, the court is not expected to go
deep into the probative value of the material on record.
What needs to be considered is whether there is a
ground for presuming that the offence has been
committed and not a ground for convicting the accused
has been made out. At that stage, even strong suspicion
founded on material which leads the court to form a
presumptive opinion as to the existence of the factual
ingredients constituting the offence alleged would justify
the framing of charge against the accused in respect of
the commission of that offence.”
56.Then again in the case of Som Nath Thapa (supra), a three
Judge Bench of this Court, after noting the three pairs of Sections
i.e. (i) Sections 227 and 228 resply in so far as the sessions trial is
concerned; (ii) Sections 239 and 240 resply relatable to the trial of
warrant cases; and (iii) Sections 245(1) and (2) qua the trial of
summons cases, which dealt with the question of framing of charge
or discharge, stated thus: (SCC p. 671, para 32).
"32...if on the basis of materials on record, a court could
come to the conclusion that commission of the offence is
a probable consequence, a case for framing of charge
exists. To put it differently, if the court were to think that
the accused might have committed the offence it can
frame the charge, though for conviction the conclusion is
required to be that the accused has committed the
offence. It is apparent that at the stage of framing of a
charge, probative value of the materials on record
cannot be gone into; the materials brought on record by
the prosecution has to be accepted as true at that
57
stage."
57.In a later decision in Mohanlal Soni (supra), this Court,
referring to several of its previous decisions, held that: (SCC p. 342,
para 7)
"7. The crystallised judicial view is that at the stage of
framing charge, the court has to prima facie consider
whether there is sufficient ground for proceeding against
the accused. The court is not required to appreciate
evidence to conclude whether the materials produced
are sufficient or not for convicting the accused.”
58.Reiterating a similar view in Sheoraj Singh Ahlawat and
others v. State of Uttar Pradesh and another , (2013) 11 SCC
476, it was observed by this Court that while framing charges the
court is required to evaluate the materials and documents on
record to decide whether the facts emerging therefrom taken at
their face value would disclose existence of ingredients constituting
the alleged offence. At this stage, the court is not required to go
deep into the probative value of the materials on record. It needs to
evaluate whether there is a ground for presuming that the accused
had committed the offence and it is not required to evaluate
sufficiency of evidence to convict the accused. It was held that the
58
Court at this stage cannot speculate into the truthfulness or falsity
of the allegations and contradictions & inconsistencies in the
statement of witnesses cannot be looked into at the stage of
discharge.
59.In the context of trial of a warrant case, instituted on a police
report, the provisions for discharge are to be governed as per the
terms of Section 239 which provide that a direction for discharge
can be made only for reasons to be recorded by the court where it
considers the charge against the accused to be groundless. It
would, therefore, follow that as per the provisions under Section
239 what needs to be considered is whether there is a ground for
presuming that the offence has been committed and not that a
ground for convicting the accused has been made out. At that
stage, even strong suspicion founded on material which leads the
Court to form a presumptive opinion as to the existence of the
factual ingredients constituting the offences alleged would justify
the framing of charge against the accused in respect of that offence,
and it is only in a case where the Magistrate considers the charge to
be groundless, he is to discharge the accused after recording his
59
reasons for doing so.
60. Section 239 envisages a careful and objective consideration of
the question whether the charge against the accused is groundless
or whether there is ground for presuming that he has committed an
offence. What Section 239 prescribes is not, therefore, an empty or
routine formality. It is a valuable provision to the advantage of the
accused, and its breach is not permissible under the law. But if the
Judge, upon considering the record, including the examination, if
any, and the hearing, is of the opinion that there is "ground for
presuming" that the accused has committed the offence triable
under the chapter, he is required by Section 240 to frame in writing
a charge against the accused. The order for the framing of the
charge is also not an empty or routine formality. It is of a far
reaching nature, and it amounts to a decision that the accused is
not entitled to discharge under Section 239, that there is, on the
other hand, ground for presuming that he has committed an offence
triable under Chapter XIX and that he should be called upon to
plead guilty to it and be convicted and sentenced on that plea, or
face the trial. (See : V.C. Shukla v. State through CBI, AIR 1980
60
SC 962).
61. Section 239 of the CrPC lays down that if the Magistrate
considers the charge against the accused to be groundless, he shall
discharge the accused. The word 'groundless', in our opinion,
means that there must be no ground for presuming that the
accused has committed the offence. The word 'groundless' used in
Section 239 of the CrPC means that the materials placed before the
Court do not make out or are not sufficient to make out a prima
facie case against the accused.
62. The learned author Shri Sarkar in his Criminal P.C., 5th
Edition, on page 427, has opined as:
"The provision is the same as in S. 227, the only difference
being that the Magistrate may examine the accused, if nec
essary, of also S. 245. The Magistrate shall discharge the
accused recording reasons, if after (i) considering the police
report and documents mentioned in S. 173; (ii) examining the
accused, if necessary and (iii) hearing the arguments of both
sides he thinks the charge against him to be groundless, i.e.,
either there is no legal evidence or that the facts do not make
out any offence at all."
63. In short, it means that if no prima facie case regarding the
commission of any offence is made out, it would amount to a charge
being groundless.
61
64. In Century Spinning and Manufacturing Co. Ltd. v. State
of Maharashtra, AIR 1972 SC 545, this Court has stated about
the ambit of Section 251(A)(2) of the CrPC 1898, which is in pari
materia with the wordings used in Section 239 of the CrPC as fol
lows:
"It cannot be said that the Court at the stage of framing the
charge has not to apply its judicial mind for considering
whether or not there is a ground for presuming the commis
sion of the offence by the accused. The order framing the
charges does substantially affect the person's liberty and it
cannot be said that the Court must automatically frame the
charge merely because the prosecuting authorities by rely
ing on the documents referred to in S. 173 consider it
proper to institute the case. The responsibility of framing
the charges is that of the Court and it has to judicially con
sider the question of doing so. Without fully adverting to the
material on the record it must not blindly adopt the decision
of the prosecution."
In para 15, this Court has stated as:
"Under subsec. (2), if upon consideration of all the docu
ments referred to in S. 173, Criminal P.C. and examining
the accused, if considered necessary by the Magistrate
and also after hearing both sides, the Magistrate consid
ers the charge to be groundless, he must discharge the
accused. This subsection has to be read along with sub
sec. (3), according to which, if after hearing the argu
ments and hearing the accused, the Magistrate thinks
that there is ground for presuming that the accused has
committed an offence triable under Chap. XXI of the Code
within the Magistrate's competence and for which he can
62
punish adequately, he has to frame in writing a charge
against the accused. Reading the two subsections to
gether, it clearly means that if there is no ground for pre
suming that the accused has committed an offence, the
charges must be considered to be groundless, which is
the same thing as saying that there is no ground for
framing the charges." (Emphasis supplied)
65. Thus the word 'groundless', as interpreted by this Court,
means that there is no ground for presuming that the accused has
committed an offence.
66. This Court has again dealt with this aspect of the matter in
Superintendent and Remembrancer of Legal Affairs, West Ben
gal v. Anil Kumar Bhunja, AIR 1980 SC 52. This Court has stated
in the said case as:
"At this stage, even a very strong suspicion found upon
materials before the Magistrate, which leads him to form
a presumptive opinion as to the existence of the factual
ingredients constituting the offence alleged, may justify
the framing of charges against the accused in respect of
the commission of that offence."
67. The suspicion referred to by this Court must be founded upon
the materials placed before the Magistrate which leads him to form
63
a presumptive opinion as to the existence of the factual ingredients
constituting the offence alleged. Therefore, the words "a very strong
suspicion" used by this Court must not be a strong suspicion of a
vacillating mind of a Judge. That suspicion must be founded upon
the materials placed before the Magistrate which leads him to form
a presumptive opinion about the existence of the factual ingredients
constituting the offence alleged.
68. Section 239 has to be read along with Section 240 of the CrPC.
If the Magistrate finds that there is prima facie evidence or the ma
terial against the accused in support of the charge (allegations), he
may frame charge in accordance with Section 240 of the CrPC. But
if he finds that the charge (the allegations or imputations) made
against the accused does not make out a prima facie case and does
not furnish basis for framing charge, it will be a case of charge be
ing groundless, so he has no option but to discharge the accused.
Where the Magistrate finds that taking cognizance of the offence it
self was contrary to any provision of law, like Section 468 of the
CrPC, the complaint being barred by limitation, so he cannot frame
the charge, he has to discharge the accused. Indeed, in a case
64
where the Magistrate takes cognizance of an offence without taking
note of Section 468 of the CrPC, the most appropriate stage at
which the accused can plead for his discharge is the stage of fram
ing the charge. He need not wait till completion of trial. The Magis
trate will be committing no illegality in considering that question
and discharging the accused at the stage of framing charge if the
facts so justify.
69. The real test for determining whether the charge should be
considered groundless under Section 239 of the CrPC is that
whether the materials are such that even if unrebutted make out no
case whatsoever, the accused should be discharged under Section
239 of the CrPC. The trial court will have to consider, whether the
materials relied upon by the prosecution against the applicant
herein for the purpose of framing of the charge, if unrebutted, make
out any case at all.
70.The provisions of discharge under Section 239 of the CrPC fell
for consideration of this Court in K. Ramakrishna and others v.
State of Bihar and another, (2000) 8 SCC 547, and it was held
that the questions regarding the sufficiency or reliability of the
65
evidence to proceed further are not required to be considered by the
trial court under Section 239 and the High Court under Section
482. It was observed as follows:
“4. The trial court under Section 239 and the High Court
under Section 482 of the Code of Criminal Procedure is
not called upon to embark upon an inquiry as to whether
evidence in question is reliable or not or evidence relied
upon is sufficient to proceed further or not. However, if
upon the admitted facts and the documents relied upon
by the complainant or the prosecution and without
weighing or sifting of evidence, no case is made out, the
criminal proceedings instituted against the accused are
required to be dropped or quashed. As observed by this
Court in Rajesh Bajaj v. State NCT of Delhi, [1999 (3)
SCC 259] the High Court or the Magistrate are also not
supposed to adopt a strict hypertechnical approach to
sieve the complaint through a colander of finest gauzes
for testing the ingredients of offence with which the
accused is charge. Such an endeavour may be justified
during trial but not during the initial stage.”
71. In the case of State by Karnataka Lokayukta, Police
Station, Bengaluru v. M.R. Hiremath , (2019) 7 SCC 515, this
Court observed and held in paragraph 25 as under:
“25. The High Court ought to have been cognizant of the fact
that the trial court was dealing with an application for
discharge under the provisions of Section 239 CrPC. The
parameters which govern the exercise of this jurisdiction
66
have found expression in several decisions of this Court. It is
a settled principle of law that at the stage of considering an
application for discharge the court must proceed on the
assumption that the material which has been brought on the
record by the prosecution is true and evaluate the material in
order to determine whether the facts emerging from the
material, taken on its face value, disclose the existence of
the ingredients necessary to constitute the offence. In State
of T.N. v. N. Suresh Rajan [State of T.N. v. N. Suresh Rajan,
(2014) 11 SCC 709, adverting to the earlier decisions on the
subject, this Court held: (SCC pp. 72122, para 29)
“29. … At this stage, probative value of the materials
has tobe gone into and the court is not expected to go
deep into the matter and hold that the materials
would not warrant a conviction. In our opinion, what
needs to be considered is whether there is a ground
for presuming that the offence has been committed
and not whether a ground for convicting the accused
has been made out. To put it differently, if the court
thinks that the accused might have committed the
offence on the basis of the materials on record on its
probative value, it can frame the charge; though for
conviction, the court has to come to the conclusion that
the accused has committed the law does not permit a
mini trial at this stage.””
72.The ambit and scope of exercise of power under Sections 239
and 240 of the CrPC, are therefore fairly well settled. The obligation
to discharge the accused under Section 239 arises when the
Magistrate considers the charge against the accused to be
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"groundless". The Section mandates that the Magistrate shall
discharge the accused recording reasons, if after (i) considering the
police report and the documents sent with it under Section 173, (ii)
examining the accused, if necessary, and (iii) giving the prosecution
and the accused an opportunity of being heard, he considers the
charge against the accused to be groundless, i.e., either there is no
legal evidence or that the facts are such that no offence is made out
at all. No detailed evaluation of the materials or meticulous
consideration of the possible defences need be undertaken at this
stage nor any exercise of weighing materials in golden scales is to
be undertaken at this stage the only consideration at the stage of
Section 239/240 is as to whether the allegation/charge is
groundless.
73.This would not be the stage for weighing the pros and cons of
all the implications of the materials, nor for sifting the materials
placed by the prosecution the exercise at this stage is to be
confined to considering the police report and the documents to
decide whether the allegations against the accused can be said to
be “groundless”.
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74.The word "ground" according to the Black's Law Dictionary
connotes foundation or basis, and in the context of prosecution in a
criminal case, it would be held to mean the basis for charging the
accused or foundation for the admissibility of evidence. Seen in the
context, the word "groundless" would connote no basis or
foundation in evidence. The test which may, therefore, be applied
for determining whether the charge should be considered
groundless is that where the materials are such that even if
unrebutted, would make out no case whatsoever.
SPOPE OF EXCERICSE OF REVISIONAL POWER AT THE STAGE
OF CHARGE
75. In Munna Devi v. State of Rajasthan & Anr ., (2001) 9 SCC
631, this Court held as under:
"3.....The revision power under the Code of Criminal Proce
dure cannot be exercised in a routine and casual manner.
While exercising such powers the High Court has no author
ity to appreciate the evidence in the manner as the trial and
the appellate courts are required to do. Revisional powers
could be exercised only when it is shown that there is a le
gal bar against the continuance of the criminal proceedings
or the framing of charge or the facts as stated in the first in
formation report even if they are taken at the face value
and accepted in their entirety do not constitute the offence
for which the accused has been charged."
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76. Thus, the revisional power cannot be exercised in a casual or
mechanical manner. It can only be exercised to correct manifest er
ror of law or procedure which would occasion injustice, if it is not
corrected. The revisional power cannot be equated with appellate
power. A revisional court cannot undertake meticulous examination
of the material on record as it is undertaken by the trial court or the
appellate court. This power can only be exercised if there is any le
gal bar to the continuance of the proceedings or if the facts as
stated in the chargesheet are taken to be true on their face value
and accepted in their entirety do not constitute the offence for
which the accused has been charged. It is conferred to check grave
error of law or procedure.
77.This Court in Asian Resurfacing of Road Agency Pvt. Ltd.
v. Central Bureau of Investigation, (2018) 16 SCC 299, has held
that interference in the order framing charges or refusing to
discharge is called for in the rarest of rare case only to correct the
patent error of jurisdiction.
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78. The High Court has acted completely beyond the settled
parameters, as discussed above, which govern the power to
discharge the accused from the prosecution. The High Court could
be said to have donned the role of a chartered accountant. This is
exactly what this Court observed in the case of Thommandru
Hannah Vijayalakshmi @ T.H. Vijayalakshmi (supra). The High
Court has completely ignored that it was not at the stage of trial or
considering an appeal against a verdict in a trial. The High Court
has enquired into the materials produced by the accused persons,
compared with the information complied by the investigation
agency and pronounced a verdict saying that the explanation
offered by the accused persons deserves to be accepted applying the
doctrine of preponderance of probability. This entire exercise has
been justified on account of the investigating officer not taking into
the explanation offered by the public servant and also not taking
into consideration the lawful acquired assets of the wife of the
public servant i.e. the Respondent No. 2 herein.
79.By accepting the entire evidence put forward by the accused
persons applying the doctrine of preponderance of probability, the
71
case put up by the prosecution cannot be termed as “groundless”.
As observed by this Court in C.D.S. Swami (supra) that the
accused might have made statements before the investigating officer
as to his alleged sources of income, but the same, strictly, would
not be evidence in the case.
80.Section 13(1)(e) of the Act 1988 makes a departure from the
principle of criminal jurisprudence that the burden will always lie
on the prosecution to prove the ingredients of the offences charged
and never shifts on the accused to disprove the charge framed
against him. The legal effect of Section 13(1)(e) is that it is for the
prosecution to establish that the accused was in possession of
properties disproportionate to his known sources of income but the
term “known sources of income” would mean the sources known to
the prosecution and not the sources known to the accused and
within the knowledge of the accused. It is for the accused to
account satisfactorily for the money/assets in his hands. The onus
in this regard is on the accused to give satisfactory explanation. The
accused cannot make an attempt to discharge this onus upon him
at the stage of Section 239 of the CrPC. At the stage of Section 239
72
of the CrPC, the Court has to only look into the prima facie case
and decide whether the case put up by the prosecution is
groundless.
81.In the overall view of the matter, we are convinced that the
impugned orders passed by the High Court are not sustainable in
law and deserve to be set aside. The circumstances emerging from
the record of the case, prima facie, indicate the involvement of the
accused persons in the alleged offence. Having regard to the
materials on record, it cannot be said that the charge against the
accused persons is groundless. There are triable issues in the
matter. If there are triable issues, the Court is not expected to go
into the veracity of the rival versions.
82.In the result, both the appeals succeed and are hereby
allowed. The impugned orders passed by the High Court
discharging the accused persons from the prosecution are hereby
set aside. The Special Court shall now proceed to frame charge
against the accused persons in accordance with law and put them
to trial.
83.It is clarified that the observations made by this Court in this
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judgment shall not be construed as final expressions of the
innocence or guilt of the accused persons. The guilt or innocence of
the accused persons shall be determined by the trial court on the
basis of the evidence that may be led by both the prosecution and
the defence. We have confined our adjudication only to consider the
legality and validity of the impugned orders passed by the High
Court discharging the accused persons.
84.Pending application, if any, also stands disposed of.
…………………………………….J.
(DINESH MAHESHWARI]
…………………………………….J.
(J.B. PARDIWALA)
NEW DELHI;
SEPTEMBER 5, 2022
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