section 239 of Cr. P.C - Section 109 of the Indian Penal Code and Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act - Tamil Nadu minister and his wife , mother in law , mother and father - Discharge petition was rejected by trial court - it is set aside by High court - Apex court set aside the orders of High court and rejected the Discharge petition filed under section 239 of Cr. P.C. =
The investigating officer also came to the conclusion
that Minister’s father and mother never had any independent source of
income commensurate with the property and pecuniary resources found
acquired in their names.
Accordingly, the investigating officer submitted
the charge-sheet dated 4th of July, 2003 against Respondent No.1, the
Minister and his father (Respondent No.2) and mother (Respondent No.3)
respectively, alleging commission of an offence under Section 109 of the
Indian Penal Code and Section 13(2) read with Section 13(1)(e) of the
Prevention of Corruption Act.
Respondents filed application dated 5th of
December, 2003 under Section 239 of the Code of Criminal Procedure, 1973
(hereinafter referred to as ‘the Code’), seeking their discharge. =
True it is that at the
time of consideration of the applications for discharge, the court cannot
act as a mouthpiece of the prosecution or act as a post-office and may sift
evidence in order to find out whether or not the allegations made are
groundless so as to pass an order of discharge. 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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.22-23 OF 2014
(@SPECIAL LEAVE PETITION(CRL.)NOs.3810-3811 of 2012)
STATE OF TAMILNADU BY INS.OF POLICE
VIGILANCE AND ANTI CORRUPTION … APPELLANT
VERSUS
N.SURESH RAJAN & ORS. …RESPONDENTS
With
CRIMINAL APPEAL NO.26-38 OF 2014
(@SPECIAL LEAVE PETITION(CRL.)NOs. 134-146 of 2013)
STATE REP. BY DEPUTY SUPDT. OF POLICE
VIGILANCE AND ANTI CORRUPTION … APPELLANT
VERSUS
K.PONMUDI & ORS. …RESPONDENTS
J U D G M E N T
CHANDRAMAULI KR. PRASAD, J.
CRIMINAL APPEAL NO.22-23 OF 2014 (@SPECIAL LEAVE PETITION(CRL.)Nos.3810-
3811 of 2012)
The State of Tamil Nadu aggrieved by the order dated 10th of December,
2010 passed by the Madras High Court in Criminal R.C.No.528 of 2009 and
Criminal M.P.(MD) No.1 of 2009, setting aside the order dated 25th of
September, 2009 passed by the learned Chief Judicial Magistrate-cum-Special
Judge, Nagercoil (hereinafter referred to as ‘the Special Judge’), whereby
he refused to discharge the respondents, has preferred these special leave
petitions.
Leave granted.
Short facts giving rise to the present appeals are that
Respondent No.
1, N. Suresh Rajan, during the period from 13.05.1996 to 14.05.2001, was a
Member of the Tamil Nadu Legislative Assembly as also a State Minister of
Tourism.
Respondent No. 2, K. Neelkanda Pillai is his father and
Respondent No. 3, R.Rajam, his mother.
On the basis of an information that
N. Suresh Rajan, during his tenure as the Minister of Tourism, had acquired
and was in possession of pecuniary resources and properties in his name and
in the names of his father and mother, disproportionate to his known
sources of income, Crime No. 7 of 2002 was registered at Kanyakumari
Vigilance and Anti Corruption Department on 14th of March, 2002 against the
Minister N. Suresh Rajan, his father, mother, elder sister and his bother-
in-law.
During the course of the investigation, the investigating officer
collected and gathered informations with regard to the property and
pecuniary resources in possession of N. Suresh Rajan during his tenure as
the Minister, in his name and in the name of others. On computation of the
income of the Minister from his known sources and also expenditure incurred
by him, it was found that the properties owned and possessed by him are
disproportionate to his known sources of income to the tune of Rs.
23,77,950.94.
The investigating officer not only examined the accused
Minister but also his father and mother as also his sister and the brother-
in-law.
Ultimately, the investigating agency came to the conclusion that
during the check period, Respondent No.1, N. Suresh Rajan has acquired and
was in possession of pecuniary resources and properties in his name and in
the names of his father, K. Neelakanda Pillai (Respondent No. 2) and mother
R. Rajam (Respondent No. 3) and his wife D.S. Bharathi for total value of
Rs. 17,58,412.47.
The investigating officer also came to the conclusion
that Minister’s father and mother never had any independent source of
income commensurate with the property and pecuniary resources found
acquired in their names.
Accordingly, the investigating officer submitted
the charge-sheet dated 4th of July, 2003 against Respondent No.1, the
Minister and his father (Respondent No.2) and mother (Respondent No.3)
respectively, alleging commission of an offence under Section 109 of the
Indian Penal Code and Section 13(2) read with Section 13(1)(e) of the
Prevention of Corruption Act.
Respondents filed application dated 5th of
December, 2003 under Section 239 of the Code of Criminal Procedure, 1973
(hereinafter referred to as ‘the Code’), seeking their discharge.
The
Special Judge, by its order dated 25th of September, 2009 rejected their
prayer.
While doing so, the Special Judge observed as follows:
“At this stage it will be premature to say that there are no
sufficient materials on the side of the state to frame any
charge against them and the same would not be according to law
in the opinion of this court and at the same time this court
has come to know that there are basic materials for the
purpose of framing charges against the 3 petitioners, the
petition filed by the petitioners is dismissed and orders
passed to that effect.”
Aggrieved by the same, respondents filed criminal revision before the
High Court.
The High Court by the impugned judgment had set aside the
order of the Special Judge and discharged the respondents on its finding that in the absence of any material to show that money passed from respondent No. 1 to his mother and father, latter cannot be said to be holding the property and resources in their names on behalf of their son.
The High Court while passing the impugned order heavily relied on its
earlier judgment in the case of State by Deputy Superintendent of Police,
Vigilance and Anti Corruption Cuddalore Detachment v. K. Ponumudi & Ors.
(2007-1MLJ-CRL.-100), the validity whereof is also under consideration in
the connected appeals.
The High Court while allowing the criminal revision
observed as follows:
“12.In the instant case, the properties standing in the name
of the petitioners 2 and 3 namely, A2 and A3 could not be held
to be the properties or resources belonging to the 1st accused
in the absence of any investigation into the individual income
resources of A2 and A3.
Moreover, it is not disputed that A2
was a retired Head Master receiving pension and A3 is running
a Financial Institution and an Income Tax assessee.
In the
absence of any material to show that A1’s money flow into the
hands of A2 and A3, they cannot be said to be holding the
properties and resources in their name on behalf of the first
accused.
There is also no material to show that A2 and A3
instigated A1 to acquire properties and resources
disproportionate to his known source of income.”
It is in these circumstances that the appellant is before us.
CRIMINAL APPEAL NO.26-38 OF 2014
(@SPECIAL LEAVE PETITION(CRL.)Nos. 134-146 of 2013)
These special leave petitions are barred by limitation. There is
delay of 1954 days in filing the petitions and 217 days in refiling the
same. Applications have been filed for condoning the delay in filing and
refiling the special leave petitions.
Mr. Ranjit Kumar, learned Senior Counsel for the petitioner submits
that
the delay in filing the special leave petitions has occurred as the
Public Prosecutor earlier gave an opinion that it is not a fit case in
which special leave petitions deserve to be filed.
The Government accepted
the opinion and decided not to file the special leave petitions. It is
pointed out that the very Government in which one of the accused was a
Minister had taken the aforesaid decision not to file special leave
petitions.
However, after the change of the Government, opinion was
sought from the Advocate General, who opined that it is fit case in which
the order impugned deserves to be challenged. Accordingly, it is submitted
that the cause shown is sufficient to condone the delay.
Mr. Soli J. Sorabjee, learned Senior Counsel appearing for the
respondents, however, submits that mere change of Government would not be
sufficient to condone the inordinate delay. He submits that with the
change of the Government, many issues which have attained finality would be
reopened after long delay, which should not be allowed. According to him,
condonation of huge delay on the ground that the successor Government,
which belongs to a different political party, had taken the decision to
file the special leave petitions would be setting a very dangerous
precedent and it would lead to miscarriage of justice. He emphasizes that
there is a life span for every legal remedy and condonation of delay is an
exception. Reliance has been placed on a decision of this Court in the
case of Postmaster General v. Living Media India Ltd., (2012) 3 SCC 563,
and our attention has been drawn to Paragraph 29 of the judgment, which
reads as follows:
“29. In our view, it is the right time to inform all the
government bodies, their agencies and instrumentalities that
unless they have reasonable and acceptable explanation for the
delay and there was bona fide effort, there is no need to
accept the usual explanation that the file was kept pending
for several months/years due to considerable degree of
procedural red tape in the process. The government departments
are under a special obligation to ensure that they perform
their duties with diligence and commitment. Condonation of
delay is an exception and should not be used as an anticipated
benefit for the government departments. The law shelters
everyone under the same light and should not be swirled for
the benefit of a few.”
Mr. Sorabjee further submits that the Limitation Act does not provide
for different period of limitation for the Government in resorting to the
remedy provided under the law and the case in hand being not a case of
fraud or collusion by its officers or agents, the huge delay is not fit to
be condoned. Reliance has also been placed on a decision of this Court in
the case of Pundlik Jalam Patil v. Executive Engineer, Jalgaon Medium
Project, (2008) 17 SCC 448 and reference has been made to Paragraph 31 of
the judgment, which reads as follows:
“31. It is true that when the State and its instrumentalities
are the applicants seeking condonation of delay they may be
entitled to certain amount of latitude but the law of
limitation is same for citizen and for governmental
authorities. The Limitation Act does not provide for a
different period to the Government in filing appeals or
applications as such. It would be a different matter where the
Government makes out a case where public interest was shown to
have suffered owing to acts of fraud or collusion on the part
of its officers or agents and where the officers were clearly
at cross purposes with it. In a given case if any such facts
are pleaded or proved they cannot be excluded from
consideration and those factors may go into the judicial
verdict. In the present case, no such facts are pleaded and
proved though a feeble attempt by the learned counsel for the
respondent was made to suggest collusion and fraud but without
any basis. We cannot entertain the submission made across the
Bar without there being any proper foundation in the
pleadings.”
The contentions put forth by Mr. Sorabjee are weighty, deserving
thoughtful consideration and at one point of time we were inclined to
reject the applications filed for condonation of delay and dismiss the
special leave petitions.
However, on a second thought we find that the
validity of the order impugned in these special leave petitions has to be
gone into in criminal appeals arising out of Special Leave Petitions
(Criminal) Nos. 3810-3811 of 2012 and in the face of it, it shall be unwise
to dismiss these special leave petitions on the ground of limitation.
It
is worth mentioning here that the order impugned in the criminal appeals
arising out of Special Leave Petition (Criminal) Nos. 3810-3811 of 2012,
State of Tamil Nadu by Ins. of Police, Vigilance and Anti Corruption v. N.
Suresh Rajan & Ors., has been mainly rendered, relying on the decision in
State by Deputy Superintendent of Police, Vigilance and Anti Corruption
Cuddalore Detachment vs. K. Ponmudi and Ors.(2007-1MLJ-CRL.-100), which is
impugned in the present special leave petitions.
In fact, by order dated
3rd of January, 2013, these petitions were directed to be heard along with
the aforesaid special leave petitions. In such circumstances, we condone
the delay in filing and refiling the special leave petitions.
In these petitions the State of Tamil Nadu impugns the order dated
11th of August, 2006 passed by the Madras High Court whereby the revision
petitions filed against the order of discharge dated 21st of July, 2004
passed by the Special Judge/Chief Judicial Magistrate, Villupuram
(hereinafter referred to as ‘the Special Judge’), in the Special Case No. 7
of 2003, have been dismissed.
Leave granted.
Shorn of unnecessary details, facts giving rise to the present appeals
are that K. Ponumudi, respondent No. 1 herein, happened to be a Member of
the State Legislative Assembly and a State Minister in the Tamil Nadu
Government during the check period. P. Visalakshi Ponmudi (Respondent No.2)
is his wife, whereas P.Saraswathi (Respondent No.3) (since deceased) was
his mother-in-law. A.Manivannan (Respondent No.4) and A.Nandagopal
(Respondent No.5) (since deceased) are the friends of the Minister
(Respondent No.1). Respondent Nos. 3 to 5 during their lifetime were
trustees of one Siga Educational Trust, Villupuram.
In the present appeals, we have to examine the validity of the order
of discharge passed by the Special Judge as affirmed by the High Court.
Hence, we consider it unnecessary to go into the details of the case of the
prosecution or the defence of the respondent at this stage. Suffice it to
say that, according to the prosecution, K. Ponmudi (Respondent No.1), as a
Minister of Transport and a Member of the Tamil Nadu Legislative Assembly
during the period from 13.05.1996 to 30.09.2001, had acquired and was in
possession of pecuniary resources and properties in his name and in the
names of his wife and sons, which were disproportionate to his known
sources of income. Accordingly, Crime No. 4 of 2002 was registered at
Cuddalore Village, Anti-Corruption Department on 14th of March, 2002 under
Section 109 of the Indian Penal Code read with Section 13(2) and Section
13(1)(e) of the Prevention of Corruption Act, hereinafter referred to as
‘the Act’. During the course of investigation it transpired that between
the period from 13.05.1996 to 31.03.2002, the Minister had acquired and
possessed properties at Mathirimangalam, Kaspakaranai, Kappiampuliyur
villages and other places in Villupuram Taluk, at Vittalapuram village and
other places in Thindivanam Taluk, at Cuddalore and Pondicherry Towns, at
Chennai and Trichy cities and at other places. It is alleged that
respondent No.1-Minister being a public servant committed the offence of
criminal misconduct by acquiring and being in possession of pecuniary
resources and properties in his name and in the names of his wife, mother-
in-law and also in the name of Siga Educational Trust, held by the other
respondents on behalf of Respondent No. 1, the Minister, which were
disproportionate to his known sources of income to the extent of
Rs.3,08,35,066.97. According to the prosecution, he could not
satisfactorily account for the assets and in this way, the Minister had
committed the offence punishable under Section 13(2) read with Section
13(1)(e) of the Act.
In the course of investigation, it further transpired that during the
check period and in the places stated above, other accused abetted the
Minister in the commission of the offence by him. Respondent No. 2, the
wife of the Minister, aided in commission of the offence by holding on his
behalf a substantial portion of properties and pecuniary resources in her
name as well as in the name of M/s. Visal Expo, of which she was the sole
Proprietor. Similarly, Respondent No. 3, the mother-in-law, aided the
Minister by holding on his behalf a substantial portion of properties and
pecuniary resources in her name as well as in the name of Siga Educational
Trust by purporting to be one of its Trustees. Similarly, Respondent No. 4
and Respondent No. 5 aided the Minister and held on his behalf a
substantial portion of the properties and pecuniary resources in the name
of Siga Educational Trust by purporting to be its Trustees. It is relevant
here to mention that during the course of investigation, the statement of
all other accused were taken and in the opinion of the investigating
agency, after due scrutiny of their statements and further verification,
the Minister was not able to satisfactorily account for the quantum of
disproportionate assets. Accordingly, the Vigilance and Anti Corruption
Department of the State Government submitted charge-sheet against the
respondents under Section 109 of the Indian Penal Code and Section 13(2)
read with Section 13(1)(e) of the Act.
It is relevant here to state that the offences punishable under the
scheme of the Act have to be tried by a Special Judge and he may take
cognizance of the offence without commitment of the accused and the Judge
trying the accused is required to follow the procedure prescribed by the
Code for the trial of warrant cases by the Magistrate. The Special Judge
holding the trial is deemed to be a Court of Sessions. The respondents
filed petition for discharge under Section 239 of the Code inter alia
contending that the system which the prosecution had followed to ascertain
the income of the accused is wrong. Initially, the check period was from
10.05.1996 to 13.09.2001 which, during the investigation, was enlarged from
13.05.1996 to 31.03.2002. Not only this, according to the accused, the
income was undervalued and the expenditures exaggerated. According to
Respondent No. 1, the Minister, income of the individual property of his
wife and that of his mother-in-law and their expenditure ought not to have
been shown as his property. According to him, the allegation that the
properties in their names are his benami properties is wrong. It was also
contended that the valuation of the properties has been arrived at without
taking into consideration the entire income and expenditure of Respondent
No. 1. Respondents have also alleged that the investigating officer, who
is the informant of the case, had acted autocratically and his action is
vitiated by bias. The Special Judge examined all these contentions and by
order dated 21st of July, 2004 discharged Respondents on its finding that
the investigation was not conducted properly. The Special Judge further
held that the value of the property of Respondent Nos. 2 to 5 ought not to
have been clubbed with that of the individual properties and income of
Respondent No. 1 and by doing so, the assets of Respondent No. 1 cannot be
said to be disproportionate to his known sources of income. On the
aforesaid finding the Special Judge discharged all the accused. Aggrieved
by the same, the State of Tamil Nadu filed separate revision petitions and
the High Court, by the impugned order, has dismissed all the revision
petitions. The High Court, while affirming the order of discharge, held
that the prosecution committed an error by adding the income of other
respondents, who were assessed under the Income Tax Act, in the income of
Respondent No.1. In the opinion of the High Court, an independent and
unbiased scrutiny of the entire documents furnished along with the final
report would not make out any ground of framing of charges against any of
the accused persons. While doing so, the High Court has observed as
follows:
“18. The assets which admittedly, do not belong to Accused 1
and owned by individuals having independent source of income
which are assessed under the Income Tax Act, were added as the
assets of Accused -1. Such a procedure adopted by the
prosecution is not only unsustainable but also illegal. An
independent and unbiased scrutiny of the entire documents
furnished along with the final report would not make out any
ground for framing of charge as against any of the accused
persons. The methodology adopted by the prosecution to
establish the disproportionate assets with reference to the
known source of income is absolutely erroneous.
xxx xxx xxx
The theory of Benami is totally alien to the concept of trust
and it is not legally sustainable to array the accused 3 to 5
as holders of the properties or that they are the benamies of
the accused. The benami transaction has to be proved by the
prosecution by producing legally permissible materials of a
bona fide character which would directly prove the fact of
benami and there is a total lack of materials on this account
and hence the theory of benami has not been established even
remotely by any evidence. On a prima-facie evidence it is
evident that the other accused are possessed of sufficient
funds for acquiring their properties and that A1 has nothing
to do with those properties and that he cannot be called upon
to explain the source of income of the acquisition made by
other persons.
19……… Admittedly the accused are not possessed of the
properties standing in the name of Trust and controlled by the
Accused A3 to A5. The trust is an independent legal entity
assessed to income tax and owning the properties. Only to
boost the value of the assets the prosecution belatedly
arrayed the Trustees of the Trust as accused 3 to 5 in order
to foist a false case as against A1.
xxx xxx xxx
21………All the properties acquired by A2 and A3 in their
individual capacity acquired out of their own income have been
shown in the Income Tax Returns, which fact the prosecution
also knows and also available in the records of the
prosecution. The prosecution has no justification or reason to
disregard those income tax returns to disallow such income
while filing the final report. The documents now available on
record also would clearly disprove the claim of benami
transaction.”
The High court ultimately concluded as follows:
“24…………Therefore, the trial court analyzing the materials and
documents that were made available at the stage of framing
charges and on their face value arrived at the right
conclusion that charges could not be framed against the
respondents/accused.”
Now we proceed to consider the legal position concerning the issue of
discharge and validity of the orders impugned in these appeals in the
background thereof. Mr. Ranjit Kumar submits that the order impugned
suffers from patent illegality. He points out that at the time of framing
of the charge the scope is limited and what is to be seen at this stage is
as to whether on examination of the materials and the documents collected,
the charge can be said to be groundless or not. He submits that at this
stage, the court cannot appraise the evidence as is done at the time of
trial. He points out that while passing the impugned orders, the evidence
has been appraised and the case of the prosecution has been rejected, as is
done after the trial while acquitting the accused.
Mr. Sorabjee as also Mr. N.V. Ganesh appearing on behalf of the
respondents-accused, however, submit that when the court considers the
applications for discharge, it has to examine the materials for the purpose
of finding out as to whether the allegation made is groundless or not.
They submit that at the time of consideration of an application for
discharge, nothing prevents the court to sift and weigh the evidence for
the purpose of ascertaining as to whether the allegations made on the basis
of the materials and the documents collected are groundless or not. They
also contend that the court while considering such an application cannot
act merely as a post-office or a mouthpiece of the prosecution. In support
of the submission, reliance has been placed on a decision of this Court in
the case of Sajjan Kumar v. CBI, (2010) 9 SCC 368 and our attention has
been drawn to Paragraph 17(4) of the judgment, which reads as follows:
“17. In Union of India v. Prafulla Kumar Samal & Anr., 1979
(3) SCC 4, the scope of Section 227 CrPC was considered. After
adverting to various decisions, this Court has enumerated the
following principles:
xxx xxx xxx
(4) That in exercising his jurisdiction under Section 227 of
the Code the Judge which under the present Code is a senior
and experienced court cannot act merely as a post office or a
mouthpiece of the prosecution, but has to consider the broad
probabilities of the case, the total effect of the evidence
and the documents produced before the court, any basic
infirmities appearing in the case and so on. This however does
not mean that the Judge should make a roving enquiry into the
pros and cons of the matter and weigh the evidence as if he
was conducting a trial.”
Yet another decision on which reliance has been placed is the decision
of this Court in the case of Dilawar Balu Kurane v. State of Maharashtra,
(2002) 2 SCC 135, reference has been made to the following paragraph of
the said judgment:
“12. Now the next question is whether a prima facie case has
been made out against the appellant. In exercising powers
under Section 227 of the Code of Criminal Procedure, the
settled position of law is that the Judge while considering
the question of framing the charges under the said section has
the undoubted power to sift and weigh the evidence for the
limited purpose of finding out whether or not a prima facie
case against the accused has been made out; where the
materials placed before the court disclose grave suspicion
against the accused which has not been properly explained the
court will be fully justified in framing a charge and
proceeding with the trial; by and large if two views are
equally possible and the Judge is satisfied that the evidence
produced before him while giving rise to some suspicion but
not grave suspicion against the accused, he will be fully
justified to discharge the accused, and in exercising
jurisdiction under Section 227 of the Code of Criminal
Procedure, the Judge cannot act merely as a post office or a
mouthpiece of the prosecution, but has to consider the broad
probabilities of the case, the total effect of the evidence
and the documents produced before the court but should not
make a roving enquiry into the pros and cons of the matter and
weigh the evidence as if he was conducting a trial.”
We have bestowed our consideration to the rival submissions and the
submissions made by Mr. Ranjit Kumar commend us. True it is that at the
time of consideration of the applications for discharge, the court cannot
act as a mouthpiece of the prosecution or act as a post-office and may sift
evidence in order to find out whether or not the allegations made are
groundless so as to pass an order of discharge. 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.
Reference in this connection can be made to a recent decision of this
Court in the case of Sheoraj Singh Ahlawat & Ors. vs. State of Uttar
Pradesh & Anr., AIR 2013 SC 52, in which, after analyzing various decisions
on the point, this Court endorsed the following view taken in Onkar Nath
Mishra v. State (NCT of Delhi), (2008) 2 SCC 561:
“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 there
from, taken at their face value, disclosed the existence of
all the ingredients constituting the alleged 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."
Now reverting to the decisions of this Court in the case Sajjan Kumar
(supra) and Dilawar Balu Kurane (supra), relied on by the respondents, we
are of the opinion that they do not advance their case.
The aforesaid
decisions consider the provision of Section 227 of the Code and make it
clear that at the stage of discharge the Court can not make a roving
enquiry into the pros and cons of the matter and weigh the evidence as if
it was conducting a trial.
It is worth mentioning that the Code
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.
From a reading of the aforesaid
sections it is evident that they contain somewhat different provisions with
regard to discharge of an accused. Under Section 227 of the Code, the
trial court is required to discharge the accused if it “considers that
there is not sufficient ground for proceeding against the accused”.
However, discharge under Section 239 can be ordered when “the Magistrate
considers the charge against the accused to be groundless”.
The power to
discharge is exercisable under Section 245(1) when, “the Magistrate
considers, for reasons to be recorded that no case against the accused has
been made out which, if not repudiated, would warrant his conviction”.
Section 227 and 239 provide for discharge before the recording of evidence
on the basis of the police report, the documents sent along with it and
examination of the accused after giving an opportunity to the parties to be
heard.
However, the stage of discharge under Section 245, on the other
hand, is reached only after the evidence referred in Section 244 has been
taken. Thus, there is difference in the language employed in these
provisions.
But, in our opinion, notwithstanding these differences, and
whichever provision may be applicable, the court is required at this stage
to see that there is a prima facie case for proceeding against the accused.
Reference in this connection can be made to a judgment of this Court in
the case of R.S. Nayak v. A.R. Antulay, (1986) 2 SCC 716. The same reads
as follows:
“43………………Notwithstanding this difference in the position there
is no scope for doubt that the stage at which the magistrate
is required to consider the question of framing of charge
under Section 245(1) is a preliminary one and the test of
“prima facie” case has to be applied. In spite of the
difference in the language of the three sections, the legal
position is that if the Trial court is satisfied that a prima
facie case is made out, charge has to be framed.”
Bearing in mind the principles aforesaid, we proceed to consider the
facts of the present case.
Here the allegation against the accused
Minister (Respondent No.1), K. Ponmudi is that while he was a Member of the
Tamil Nadu Legislative Assembly and a State Minister, he had acquired and
was in possession of the properties in the name of his wife as also his
mother-in-law, who along with his other friends, were of Siga Educational
Trust, Villupuram.
According to the prosecution, the properties of Siga
Educational Trust, Villupuram were held by other accused on behalf of the
accused Minister.
These properties, according to the prosecution, in fact,
were the properties of K.Ponumudi.
Similarly, accused N. Suresh Rajan has
acquired properties disproportionate to his known sources of income in the
names of his father and mother.
While passing the order of discharge, the
fact that the accused other than the two Ministers have been assessed to
income tax and paid income tax cannot be relied upon to discharge the
accused persons particularly in view of the allegation made by the
prosecution that there was no separate income to amass such huge
properties.
The property in the name of an income tax assessee itself
cannot be a ground to hold that it actually belongs to such an assessee.
In
case this proposition is accepted, in our opinion, it will lead to
disastrous consequences.
It will give opportunity to the corrupt public
servants to amass property in the name of known persons, pay income tax on
their behalf and then be out from the mischief of law.
While passing the
impugned orders, the court has not sifted the materials for the purpose of
finding out whether or not there is sufficient ground for proceeding
against the accused but whether that would warrant a conviction.
We are of
the opinion that this was not the stage where the court should have
appraised the evidence and discharged the accused as if it was passing an
order of acquittal. Further, defect in investigation itself cannot be a
ground for discharge. In our opinion, the order impugned suffers from grave
error and calls for rectification.
Any observation made by us in this judgment is for the purpose of
disposal of these appeals and shall have no bearing on the trial. The
surviving respondents are directed to appear before the respective courts
on 3rd of February, 2014. The Court shall proceed with the trial from the
stage of charge in accordance with law and make endeavour to dispose of the
same expeditiously.
In the result, we allow these appeals and set aside the order of
discharge with the aforesaid observation.
………………..……………………………….J.
(CHANDRAMAULI KR. PRASAD)
………………….……………………………………… J.
(M.Y. EQBAL)
NEW DELHI,
JANUARY 06, 2014.
-----------------------
34
The investigating officer also came to the conclusion
that Minister’s father and mother never had any independent source of
income commensurate with the property and pecuniary resources found
acquired in their names.
Accordingly, the investigating officer submitted
the charge-sheet dated 4th of July, 2003 against Respondent No.1, the
Minister and his father (Respondent No.2) and mother (Respondent No.3)
respectively, alleging commission of an offence under Section 109 of the
Indian Penal Code and Section 13(2) read with Section 13(1)(e) of the
Prevention of Corruption Act.
Respondents filed application dated 5th of
December, 2003 under Section 239 of the Code of Criminal Procedure, 1973
(hereinafter referred to as ‘the Code’), seeking their discharge. =
True it is that at the
time of consideration of the applications for discharge, the court cannot
act as a mouthpiece of the prosecution or act as a post-office and may sift
evidence in order to find out whether or not the allegations made are
groundless so as to pass an order of discharge. 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.
Here the allegation against the accused
Minister (Respondent No.1), K. Ponmudi is that while he was a Member of the
Tamil Nadu Legislative Assembly and a State Minister, he had acquired and
was in possession of the properties in the name of his wife as also his
mother-in-law, who along with his other friends, were of Siga Educational
Trust, Villupuram. According to the prosecution, the properties of Siga
Educational Trust, Villupuram were held by other accused on behalf of the
accused Minister. These properties, according to the prosecution, in fact,
were the properties of K.Ponumudi. Similarly, accused N. Suresh Rajan has
acquired properties disproportionate to his known sources of income in the
names of his father and mother. While passing the order of discharge, the
fact that the accused other than the two Ministers have been assessed to
income tax and paid income tax cannot be relied upon to discharge the
accused persons particularly in view of the allegation made by the
prosecution that there was no separate income to amass such huge
properties. The property in the name of an income tax assessee itself
cannot be a ground to hold that it actually belongs to such an assessee. In
case this proposition is accepted, in our opinion, it will lead to
disastrous consequences. It will give opportunity to the corrupt public
servants to amass property in the name of known persons, pay income tax on
their behalf and then be out from the mischief of law. While passing the
impugned orders, the court has not sifted the materials for the purpose of
finding out whether or not there is sufficient ground for proceeding
against the accused but whether that would warrant a conviction. We are of
the opinion that this was not the stage where the court should have
appraised the evidence and discharged the accused as if it was passing an
order of acquittal. Further, defect in investigation itself cannot be a
ground for discharge. In our opinion, the order impugned suffers from grave
error and calls for rectification.
Any observation made by us in this judgment is for the purpose of
disposal of these appeals and shall have no bearing on the trial. The
surviving respondents are directed to appear before the respective courts
on 3rd of February, 2014. The Court shall proceed with the trial from the
stage of charge in accordance with law and make endeavour to dispose of the
same expeditiously.
In the result, we allow these appeals and set aside the order of
discharge with the aforesaid observation.
2014 ( JANUARY - VOL -1) JUDIS.NIC.IN/ S.C./ FILE NAME= 41135
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.22-23 OF 2014
(@SPECIAL LEAVE PETITION(CRL.)NOs.3810-3811 of 2012)
STATE OF TAMILNADU BY INS.OF POLICE
VIGILANCE AND ANTI CORRUPTION … APPELLANT
VERSUS
N.SURESH RAJAN & ORS. …RESPONDENTS
With
CRIMINAL APPEAL NO.26-38 OF 2014
(@SPECIAL LEAVE PETITION(CRL.)NOs. 134-146 of 2013)
STATE REP. BY DEPUTY SUPDT. OF POLICE
VIGILANCE AND ANTI CORRUPTION … APPELLANT
VERSUS
K.PONMUDI & ORS. …RESPONDENTS
J U D G M E N T
CHANDRAMAULI KR. PRASAD, J.
CRIMINAL APPEAL NO.22-23 OF 2014 (@SPECIAL LEAVE PETITION(CRL.)Nos.3810-
3811 of 2012)
The State of Tamil Nadu aggrieved by the order dated 10th of December,
2010 passed by the Madras High Court in Criminal R.C.No.528 of 2009 and
Criminal M.P.(MD) No.1 of 2009, setting aside the order dated 25th of
September, 2009 passed by the learned Chief Judicial Magistrate-cum-Special
Judge, Nagercoil (hereinafter referred to as ‘the Special Judge’), whereby
he refused to discharge the respondents, has preferred these special leave
petitions.
Leave granted.
Short facts giving rise to the present appeals are that
Respondent No.
1, N. Suresh Rajan, during the period from 13.05.1996 to 14.05.2001, was a
Member of the Tamil Nadu Legislative Assembly as also a State Minister of
Tourism.
Respondent No. 2, K. Neelkanda Pillai is his father and
Respondent No. 3, R.Rajam, his mother.
On the basis of an information that
N. Suresh Rajan, during his tenure as the Minister of Tourism, had acquired
and was in possession of pecuniary resources and properties in his name and
in the names of his father and mother, disproportionate to his known
sources of income, Crime No. 7 of 2002 was registered at Kanyakumari
Vigilance and Anti Corruption Department on 14th of March, 2002 against the
Minister N. Suresh Rajan, his father, mother, elder sister and his bother-
in-law.
During the course of the investigation, the investigating officer
collected and gathered informations with regard to the property and
pecuniary resources in possession of N. Suresh Rajan during his tenure as
the Minister, in his name and in the name of others. On computation of the
income of the Minister from his known sources and also expenditure incurred
by him, it was found that the properties owned and possessed by him are
disproportionate to his known sources of income to the tune of Rs.
23,77,950.94.
The investigating officer not only examined the accused
Minister but also his father and mother as also his sister and the brother-
in-law.
Ultimately, the investigating agency came to the conclusion that
during the check period, Respondent No.1, N. Suresh Rajan has acquired and
was in possession of pecuniary resources and properties in his name and in
the names of his father, K. Neelakanda Pillai (Respondent No. 2) and mother
R. Rajam (Respondent No. 3) and his wife D.S. Bharathi for total value of
Rs. 17,58,412.47.
The investigating officer also came to the conclusion
that Minister’s father and mother never had any independent source of
income commensurate with the property and pecuniary resources found
acquired in their names.
Accordingly, the investigating officer submitted
the charge-sheet dated 4th of July, 2003 against Respondent No.1, the
Minister and his father (Respondent No.2) and mother (Respondent No.3)
respectively, alleging commission of an offence under Section 109 of the
Indian Penal Code and Section 13(2) read with Section 13(1)(e) of the
Prevention of Corruption Act.
Respondents filed application dated 5th of
December, 2003 under Section 239 of the Code of Criminal Procedure, 1973
(hereinafter referred to as ‘the Code’), seeking their discharge.
The
Special Judge, by its order dated 25th of September, 2009 rejected their
prayer.
While doing so, the Special Judge observed as follows:
“At this stage it will be premature to say that there are no
sufficient materials on the side of the state to frame any
charge against them and the same would not be according to law
in the opinion of this court and at the same time this court
has come to know that there are basic materials for the
purpose of framing charges against the 3 petitioners, the
petition filed by the petitioners is dismissed and orders
passed to that effect.”
Aggrieved by the same, respondents filed criminal revision before the
High Court.
The High Court by the impugned judgment had set aside the
order of the Special Judge and discharged the respondents on its finding that in the absence of any material to show that money passed from respondent No. 1 to his mother and father, latter cannot be said to be holding the property and resources in their names on behalf of their son.
The High Court while passing the impugned order heavily relied on its
earlier judgment in the case of State by Deputy Superintendent of Police,
Vigilance and Anti Corruption Cuddalore Detachment v. K. Ponumudi & Ors.
(2007-1MLJ-CRL.-100), the validity whereof is also under consideration in
the connected appeals.
The High Court while allowing the criminal revision
observed as follows:
“12.In the instant case, the properties standing in the name
of the petitioners 2 and 3 namely, A2 and A3 could not be held
to be the properties or resources belonging to the 1st accused
in the absence of any investigation into the individual income
resources of A2 and A3.
Moreover, it is not disputed that A2
was a retired Head Master receiving pension and A3 is running
a Financial Institution and an Income Tax assessee.
In the
absence of any material to show that A1’s money flow into the
hands of A2 and A3, they cannot be said to be holding the
properties and resources in their name on behalf of the first
accused.
There is also no material to show that A2 and A3
instigated A1 to acquire properties and resources
disproportionate to his known source of income.”
It is in these circumstances that the appellant is before us.
CRIMINAL APPEAL NO.26-38 OF 2014
(@SPECIAL LEAVE PETITION(CRL.)Nos. 134-146 of 2013)
These special leave petitions are barred by limitation. There is
delay of 1954 days in filing the petitions and 217 days in refiling the
same. Applications have been filed for condoning the delay in filing and
refiling the special leave petitions.
Mr. Ranjit Kumar, learned Senior Counsel for the petitioner submits
that
the delay in filing the special leave petitions has occurred as the
Public Prosecutor earlier gave an opinion that it is not a fit case in
which special leave petitions deserve to be filed.
The Government accepted
the opinion and decided not to file the special leave petitions. It is
pointed out that the very Government in which one of the accused was a
Minister had taken the aforesaid decision not to file special leave
petitions.
However, after the change of the Government, opinion was
sought from the Advocate General, who opined that it is fit case in which
the order impugned deserves to be challenged. Accordingly, it is submitted
that the cause shown is sufficient to condone the delay.
Mr. Soli J. Sorabjee, learned Senior Counsel appearing for the
respondents, however, submits that mere change of Government would not be
sufficient to condone the inordinate delay. He submits that with the
change of the Government, many issues which have attained finality would be
reopened after long delay, which should not be allowed. According to him,
condonation of huge delay on the ground that the successor Government,
which belongs to a different political party, had taken the decision to
file the special leave petitions would be setting a very dangerous
precedent and it would lead to miscarriage of justice. He emphasizes that
there is a life span for every legal remedy and condonation of delay is an
exception. Reliance has been placed on a decision of this Court in the
case of Postmaster General v. Living Media India Ltd., (2012) 3 SCC 563,
and our attention has been drawn to Paragraph 29 of the judgment, which
reads as follows:
“29. In our view, it is the right time to inform all the
government bodies, their agencies and instrumentalities that
unless they have reasonable and acceptable explanation for the
delay and there was bona fide effort, there is no need to
accept the usual explanation that the file was kept pending
for several months/years due to considerable degree of
procedural red tape in the process. The government departments
are under a special obligation to ensure that they perform
their duties with diligence and commitment. Condonation of
delay is an exception and should not be used as an anticipated
benefit for the government departments. The law shelters
everyone under the same light and should not be swirled for
the benefit of a few.”
Mr. Sorabjee further submits that the Limitation Act does not provide
for different period of limitation for the Government in resorting to the
remedy provided under the law and the case in hand being not a case of
fraud or collusion by its officers or agents, the huge delay is not fit to
be condoned. Reliance has also been placed on a decision of this Court in
the case of Pundlik Jalam Patil v. Executive Engineer, Jalgaon Medium
Project, (2008) 17 SCC 448 and reference has been made to Paragraph 31 of
the judgment, which reads as follows:
“31. It is true that when the State and its instrumentalities
are the applicants seeking condonation of delay they may be
entitled to certain amount of latitude but the law of
limitation is same for citizen and for governmental
authorities. The Limitation Act does not provide for a
different period to the Government in filing appeals or
applications as such. It would be a different matter where the
Government makes out a case where public interest was shown to
have suffered owing to acts of fraud or collusion on the part
of its officers or agents and where the officers were clearly
at cross purposes with it. In a given case if any such facts
are pleaded or proved they cannot be excluded from
consideration and those factors may go into the judicial
verdict. In the present case, no such facts are pleaded and
proved though a feeble attempt by the learned counsel for the
respondent was made to suggest collusion and fraud but without
any basis. We cannot entertain the submission made across the
Bar without there being any proper foundation in the
pleadings.”
The contentions put forth by Mr. Sorabjee are weighty, deserving
thoughtful consideration and at one point of time we were inclined to
reject the applications filed for condonation of delay and dismiss the
special leave petitions.
However, on a second thought we find that the
validity of the order impugned in these special leave petitions has to be
gone into in criminal appeals arising out of Special Leave Petitions
(Criminal) Nos. 3810-3811 of 2012 and in the face of it, it shall be unwise
to dismiss these special leave petitions on the ground of limitation.
It
is worth mentioning here that the order impugned in the criminal appeals
arising out of Special Leave Petition (Criminal) Nos. 3810-3811 of 2012,
State of Tamil Nadu by Ins. of Police, Vigilance and Anti Corruption v. N.
Suresh Rajan & Ors., has been mainly rendered, relying on the decision in
State by Deputy Superintendent of Police, Vigilance and Anti Corruption
Cuddalore Detachment vs. K. Ponmudi and Ors.(2007-1MLJ-CRL.-100), which is
impugned in the present special leave petitions.
In fact, by order dated
3rd of January, 2013, these petitions were directed to be heard along with
the aforesaid special leave petitions. In such circumstances, we condone
the delay in filing and refiling the special leave petitions.
In these petitions the State of Tamil Nadu impugns the order dated
11th of August, 2006 passed by the Madras High Court whereby the revision
petitions filed against the order of discharge dated 21st of July, 2004
passed by the Special Judge/Chief Judicial Magistrate, Villupuram
(hereinafter referred to as ‘the Special Judge’), in the Special Case No. 7
of 2003, have been dismissed.
Leave granted.
Shorn of unnecessary details, facts giving rise to the present appeals
are that K. Ponumudi, respondent No. 1 herein, happened to be a Member of
the State Legislative Assembly and a State Minister in the Tamil Nadu
Government during the check period. P. Visalakshi Ponmudi (Respondent No.2)
is his wife, whereas P.Saraswathi (Respondent No.3) (since deceased) was
his mother-in-law. A.Manivannan (Respondent No.4) and A.Nandagopal
(Respondent No.5) (since deceased) are the friends of the Minister
(Respondent No.1). Respondent Nos. 3 to 5 during their lifetime were
trustees of one Siga Educational Trust, Villupuram.
In the present appeals, we have to examine the validity of the order
of discharge passed by the Special Judge as affirmed by the High Court.
Hence, we consider it unnecessary to go into the details of the case of the
prosecution or the defence of the respondent at this stage. Suffice it to
say that, according to the prosecution, K. Ponmudi (Respondent No.1), as a
Minister of Transport and a Member of the Tamil Nadu Legislative Assembly
during the period from 13.05.1996 to 30.09.2001, had acquired and was in
possession of pecuniary resources and properties in his name and in the
names of his wife and sons, which were disproportionate to his known
sources of income. Accordingly, Crime No. 4 of 2002 was registered at
Cuddalore Village, Anti-Corruption Department on 14th of March, 2002 under
Section 109 of the Indian Penal Code read with Section 13(2) and Section
13(1)(e) of the Prevention of Corruption Act, hereinafter referred to as
‘the Act’. During the course of investigation it transpired that between
the period from 13.05.1996 to 31.03.2002, the Minister had acquired and
possessed properties at Mathirimangalam, Kaspakaranai, Kappiampuliyur
villages and other places in Villupuram Taluk, at Vittalapuram village and
other places in Thindivanam Taluk, at Cuddalore and Pondicherry Towns, at
Chennai and Trichy cities and at other places. It is alleged that
respondent No.1-Minister being a public servant committed the offence of
criminal misconduct by acquiring and being in possession of pecuniary
resources and properties in his name and in the names of his wife, mother-
in-law and also in the name of Siga Educational Trust, held by the other
respondents on behalf of Respondent No. 1, the Minister, which were
disproportionate to his known sources of income to the extent of
Rs.3,08,35,066.97. According to the prosecution, he could not
satisfactorily account for the assets and in this way, the Minister had
committed the offence punishable under Section 13(2) read with Section
13(1)(e) of the Act.
In the course of investigation, it further transpired that during the
check period and in the places stated above, other accused abetted the
Minister in the commission of the offence by him. Respondent No. 2, the
wife of the Minister, aided in commission of the offence by holding on his
behalf a substantial portion of properties and pecuniary resources in her
name as well as in the name of M/s. Visal Expo, of which she was the sole
Proprietor. Similarly, Respondent No. 3, the mother-in-law, aided the
Minister by holding on his behalf a substantial portion of properties and
pecuniary resources in her name as well as in the name of Siga Educational
Trust by purporting to be one of its Trustees. Similarly, Respondent No. 4
and Respondent No. 5 aided the Minister and held on his behalf a
substantial portion of the properties and pecuniary resources in the name
of Siga Educational Trust by purporting to be its Trustees. It is relevant
here to mention that during the course of investigation, the statement of
all other accused were taken and in the opinion of the investigating
agency, after due scrutiny of their statements and further verification,
the Minister was not able to satisfactorily account for the quantum of
disproportionate assets. Accordingly, the Vigilance and Anti Corruption
Department of the State Government submitted charge-sheet against the
respondents under Section 109 of the Indian Penal Code and Section 13(2)
read with Section 13(1)(e) of the Act.
It is relevant here to state that the offences punishable under the
scheme of the Act have to be tried by a Special Judge and he may take
cognizance of the offence without commitment of the accused and the Judge
trying the accused is required to follow the procedure prescribed by the
Code for the trial of warrant cases by the Magistrate. The Special Judge
holding the trial is deemed to be a Court of Sessions. The respondents
filed petition for discharge under Section 239 of the Code inter alia
contending that the system which the prosecution had followed to ascertain
the income of the accused is wrong. Initially, the check period was from
10.05.1996 to 13.09.2001 which, during the investigation, was enlarged from
13.05.1996 to 31.03.2002. Not only this, according to the accused, the
income was undervalued and the expenditures exaggerated. According to
Respondent No. 1, the Minister, income of the individual property of his
wife and that of his mother-in-law and their expenditure ought not to have
been shown as his property. According to him, the allegation that the
properties in their names are his benami properties is wrong. It was also
contended that the valuation of the properties has been arrived at without
taking into consideration the entire income and expenditure of Respondent
No. 1. Respondents have also alleged that the investigating officer, who
is the informant of the case, had acted autocratically and his action is
vitiated by bias. The Special Judge examined all these contentions and by
order dated 21st of July, 2004 discharged Respondents on its finding that
the investigation was not conducted properly. The Special Judge further
held that the value of the property of Respondent Nos. 2 to 5 ought not to
have been clubbed with that of the individual properties and income of
Respondent No. 1 and by doing so, the assets of Respondent No. 1 cannot be
said to be disproportionate to his known sources of income. On the
aforesaid finding the Special Judge discharged all the accused. Aggrieved
by the same, the State of Tamil Nadu filed separate revision petitions and
the High Court, by the impugned order, has dismissed all the revision
petitions. The High Court, while affirming the order of discharge, held
that the prosecution committed an error by adding the income of other
respondents, who were assessed under the Income Tax Act, in the income of
Respondent No.1. In the opinion of the High Court, an independent and
unbiased scrutiny of the entire documents furnished along with the final
report would not make out any ground of framing of charges against any of
the accused persons. While doing so, the High Court has observed as
follows:
“18. The assets which admittedly, do not belong to Accused 1
and owned by individuals having independent source of income
which are assessed under the Income Tax Act, were added as the
assets of Accused -1. Such a procedure adopted by the
prosecution is not only unsustainable but also illegal. An
independent and unbiased scrutiny of the entire documents
furnished along with the final report would not make out any
ground for framing of charge as against any of the accused
persons. The methodology adopted by the prosecution to
establish the disproportionate assets with reference to the
known source of income is absolutely erroneous.
xxx xxx xxx
The theory of Benami is totally alien to the concept of trust
and it is not legally sustainable to array the accused 3 to 5
as holders of the properties or that they are the benamies of
the accused. The benami transaction has to be proved by the
prosecution by producing legally permissible materials of a
bona fide character which would directly prove the fact of
benami and there is a total lack of materials on this account
and hence the theory of benami has not been established even
remotely by any evidence. On a prima-facie evidence it is
evident that the other accused are possessed of sufficient
funds for acquiring their properties and that A1 has nothing
to do with those properties and that he cannot be called upon
to explain the source of income of the acquisition made by
other persons.
19……… Admittedly the accused are not possessed of the
properties standing in the name of Trust and controlled by the
Accused A3 to A5. The trust is an independent legal entity
assessed to income tax and owning the properties. Only to
boost the value of the assets the prosecution belatedly
arrayed the Trustees of the Trust as accused 3 to 5 in order
to foist a false case as against A1.
xxx xxx xxx
21………All the properties acquired by A2 and A3 in their
individual capacity acquired out of their own income have been
shown in the Income Tax Returns, which fact the prosecution
also knows and also available in the records of the
prosecution. The prosecution has no justification or reason to
disregard those income tax returns to disallow such income
while filing the final report. The documents now available on
record also would clearly disprove the claim of benami
transaction.”
The High court ultimately concluded as follows:
“24…………Therefore, the trial court analyzing the materials and
documents that were made available at the stage of framing
charges and on their face value arrived at the right
conclusion that charges could not be framed against the
respondents/accused.”
Now we proceed to consider the legal position concerning the issue of
discharge and validity of the orders impugned in these appeals in the
background thereof. Mr. Ranjit Kumar submits that the order impugned
suffers from patent illegality. He points out that at the time of framing
of the charge the scope is limited and what is to be seen at this stage is
as to whether on examination of the materials and the documents collected,
the charge can be said to be groundless or not. He submits that at this
stage, the court cannot appraise the evidence as is done at the time of
trial. He points out that while passing the impugned orders, the evidence
has been appraised and the case of the prosecution has been rejected, as is
done after the trial while acquitting the accused.
Mr. Sorabjee as also Mr. N.V. Ganesh appearing on behalf of the
respondents-accused, however, submit that when the court considers the
applications for discharge, it has to examine the materials for the purpose
of finding out as to whether the allegation made is groundless or not.
They submit that at the time of consideration of an application for
discharge, nothing prevents the court to sift and weigh the evidence for
the purpose of ascertaining as to whether the allegations made on the basis
of the materials and the documents collected are groundless or not. They
also contend that the court while considering such an application cannot
act merely as a post-office or a mouthpiece of the prosecution. In support
of the submission, reliance has been placed on a decision of this Court in
the case of Sajjan Kumar v. CBI, (2010) 9 SCC 368 and our attention has
been drawn to Paragraph 17(4) of the judgment, which reads as follows:
“17. In Union of India v. Prafulla Kumar Samal & Anr., 1979
(3) SCC 4, the scope of Section 227 CrPC was considered. After
adverting to various decisions, this Court has enumerated the
following principles:
xxx xxx xxx
(4) That in exercising his jurisdiction under Section 227 of
the Code the Judge which under the present Code is a senior
and experienced court cannot act merely as a post office or a
mouthpiece of the prosecution, but has to consider the broad
probabilities of the case, the total effect of the evidence
and the documents produced before the court, any basic
infirmities appearing in the case and so on. This however does
not mean that the Judge should make a roving enquiry into the
pros and cons of the matter and weigh the evidence as if he
was conducting a trial.”
Yet another decision on which reliance has been placed is the decision
of this Court in the case of Dilawar Balu Kurane v. State of Maharashtra,
(2002) 2 SCC 135, reference has been made to the following paragraph of
the said judgment:
“12. Now the next question is whether a prima facie case has
been made out against the appellant. In exercising powers
under Section 227 of the Code of Criminal Procedure, the
settled position of law is that the Judge while considering
the question of framing the charges under the said section has
the undoubted power to sift and weigh the evidence for the
limited purpose of finding out whether or not a prima facie
case against the accused has been made out; where the
materials placed before the court disclose grave suspicion
against the accused which has not been properly explained the
court will be fully justified in framing a charge and
proceeding with the trial; by and large if two views are
equally possible and the Judge is satisfied that the evidence
produced before him while giving rise to some suspicion but
not grave suspicion against the accused, he will be fully
justified to discharge the accused, and in exercising
jurisdiction under Section 227 of the Code of Criminal
Procedure, the Judge cannot act merely as a post office or a
mouthpiece of the prosecution, but has to consider the broad
probabilities of the case, the total effect of the evidence
and the documents produced before the court but should not
make a roving enquiry into the pros and cons of the matter and
weigh the evidence as if he was conducting a trial.”
We have bestowed our consideration to the rival submissions and the
submissions made by Mr. Ranjit Kumar commend us. True it is that at the
time of consideration of the applications for discharge, the court cannot
act as a mouthpiece of the prosecution or act as a post-office and may sift
evidence in order to find out whether or not the allegations made are
groundless so as to pass an order of discharge. 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.
Reference in this connection can be made to a recent decision of this
Court in the case of Sheoraj Singh Ahlawat & Ors. vs. State of Uttar
Pradesh & Anr., AIR 2013 SC 52, in which, after analyzing various decisions
on the point, this Court endorsed the following view taken in Onkar Nath
Mishra v. State (NCT of Delhi), (2008) 2 SCC 561:
“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 there
from, taken at their face value, disclosed the existence of
all the ingredients constituting the alleged 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."
Now reverting to the decisions of this Court in the case Sajjan Kumar
(supra) and Dilawar Balu Kurane (supra), relied on by the respondents, we
are of the opinion that they do not advance their case.
The aforesaid
decisions consider the provision of Section 227 of the Code and make it
clear that at the stage of discharge the Court can not make a roving
enquiry into the pros and cons of the matter and weigh the evidence as if
it was conducting a trial.
It is worth mentioning that the Code
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.
From a reading of the aforesaid
sections it is evident that they contain somewhat different provisions with
regard to discharge of an accused. Under Section 227 of the Code, the
trial court is required to discharge the accused if it “considers that
there is not sufficient ground for proceeding against the accused”.
However, discharge under Section 239 can be ordered when “the Magistrate
considers the charge against the accused to be groundless”.
The power to
discharge is exercisable under Section 245(1) when, “the Magistrate
considers, for reasons to be recorded that no case against the accused has
been made out which, if not repudiated, would warrant his conviction”.
Section 227 and 239 provide for discharge before the recording of evidence
on the basis of the police report, the documents sent along with it and
examination of the accused after giving an opportunity to the parties to be
heard.
However, the stage of discharge under Section 245, on the other
hand, is reached only after the evidence referred in Section 244 has been
taken. Thus, there is difference in the language employed in these
provisions.
But, in our opinion, notwithstanding these differences, and
whichever provision may be applicable, the court is required at this stage
to see that there is a prima facie case for proceeding against the accused.
Reference in this connection can be made to a judgment of this Court in
the case of R.S. Nayak v. A.R. Antulay, (1986) 2 SCC 716. The same reads
as follows:
“43………………Notwithstanding this difference in the position there
is no scope for doubt that the stage at which the magistrate
is required to consider the question of framing of charge
under Section 245(1) is a preliminary one and the test of
“prima facie” case has to be applied. In spite of the
difference in the language of the three sections, the legal
position is that if the Trial court is satisfied that a prima
facie case is made out, charge has to be framed.”
Bearing in mind the principles aforesaid, we proceed to consider the
facts of the present case.
Here the allegation against the accused
Minister (Respondent No.1), K. Ponmudi is that while he was a Member of the
Tamil Nadu Legislative Assembly and a State Minister, he had acquired and
was in possession of the properties in the name of his wife as also his
mother-in-law, who along with his other friends, were of Siga Educational
Trust, Villupuram.
According to the prosecution, the properties of Siga
Educational Trust, Villupuram were held by other accused on behalf of the
accused Minister.
These properties, according to the prosecution, in fact,
were the properties of K.Ponumudi.
Similarly, accused N. Suresh Rajan has
acquired properties disproportionate to his known sources of income in the
names of his father and mother.
While passing the order of discharge, the
fact that the accused other than the two Ministers have been assessed to
income tax and paid income tax cannot be relied upon to discharge the
accused persons particularly in view of the allegation made by the
prosecution that there was no separate income to amass such huge
properties.
The property in the name of an income tax assessee itself
cannot be a ground to hold that it actually belongs to such an assessee.
In
case this proposition is accepted, in our opinion, it will lead to
disastrous consequences.
It will give opportunity to the corrupt public
servants to amass property in the name of known persons, pay income tax on
their behalf and then be out from the mischief of law.
While passing the
impugned orders, the court has not sifted the materials for the purpose of
finding out whether or not there is sufficient ground for proceeding
against the accused but whether that would warrant a conviction.
We are of
the opinion that this was not the stage where the court should have
appraised the evidence and discharged the accused as if it was passing an
order of acquittal. Further, defect in investigation itself cannot be a
ground for discharge. In our opinion, the order impugned suffers from grave
error and calls for rectification.
Any observation made by us in this judgment is for the purpose of
disposal of these appeals and shall have no bearing on the trial. The
surviving respondents are directed to appear before the respective courts
on 3rd of February, 2014. The Court shall proceed with the trial from the
stage of charge in accordance with law and make endeavour to dispose of the
same expeditiously.
In the result, we allow these appeals and set aside the order of
discharge with the aforesaid observation.
………………..……………………………….J.
(CHANDRAMAULI KR. PRASAD)
………………….……………………………………… J.
(M.Y. EQBAL)
NEW DELHI,
JANUARY 06, 2014.
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