ANUP SINGH DAHIYA vs. STATE THR. C.B.I.

IN THE HIGH COURT OF DELHI AT NEW DELHI


Judgment Reserved On: 26.05.2016
Judgment Pronounced On: 30.09.2016


CRL.A. 285/2007

ANUP SINGH DAHIYA ..... Appellant

Through Mr. Vikram Singh, Advocate

versus

STATE THR. C.B.I. .... Respondent
Through Ms. Sonia Mathur, SPP with
Mr. Abhishek Chauhan for CBI

CORAM:
HON’BLE MR JUSTICE SIDDHARTH MRIDUL



SIDDHARTH MRIDUL, J.
1. The present is an appeal under section 374 of the Code of Criminal
Procedure, 1973 (in short ‘the code’) read with section 482 of the Code

CRL.A.285/2007 Page 1 of 75





against the judgment and order of conviction dated 28.04.2007 and order on
sentence dated 30.04.2007 passed by the Learned Special Judge (CBI), Delhi
in CC No. 157/01 in RC No. 72 (A)/1995 titled ‘ CBI vs. Anoop Singh
Dahiya ’, whereby the appellant has been convicted for an offence under
section 13(1)(e) of the Prevention of Corruption Act, 1988 (PC Act). The
appellant has been sentenced to undergo three and a half years of rigorous
imprisonment for an offence punishable under section 13(2) read with
section 13(1)(e) of the PC Act along with payment of a fine of Rs. 1,20,000/-
(Rs. One Lakh Twenty Thousand only), with the stipulation that in default of
payment of fine, the appellant shall further undergo simple imprisonment for
a period of 60 days.
2. In substratum, the case against the appellant is that he, during his
service in National Industrial Development Corporation as an Assistant
Engineer and during his service in the Transport Department as a Motor
Vehicle Inspector from 1989 to 21.08.1995, accumulated assets
disproportionate to his known sources of income to the extent of Rs.
1,19,236/-.
3. The brief facts as are relevant for the determination of the present
appeal are as under:

CRL.A.285/2007 Page 2 of 75





i. A search was conducted in connection with the trap case bearing
RC No. 71(A)/95-ACB-I against the appellant, by Shri Rajesh
Kumar, Inspector, CBI (PW1) at premises no. 10834, Gali No.
18, Pratap Nagar, Delhi belonging to Shri. Mahavir Singh
Dahiya, the father of the appellant from 7 PM on 21.08.1995 to 1
AM on 22.08.1995 in the presence of an independent witness
namely, Sh. Raj Kumar. Various articles/documents were seized
on 22.08.1995 vide observation-cum-search memo and list of
articles /documents dated 22.08.1995 (Ex. PW1/A).
ii. After the search was conducted of the aforementioned premises,
an FIR bearing RC No. 72(A)/95-DLI under section 13(1)(e) of
the PC Act was registered against the appellant on 22.08.1995, on
the basis of a complaint by Sh. Rajesh Kumar, Inspector, CBI
(PW1).
iii. On the basis of the recoveries made during the search at the
afore-stated premises further investigations were conducted and it
came to light that the appellant, after completing Engineering
from Delhi College of Engineering in 1989, joined National
Industrial Development Corporation Ltd. (NIDC), on contract

CRL.A.285/2007 Page 3 of 75





basis as Assistant Engineer, on a monthly consolidated salary of
Rs. 2500/- per month. The appellant worked with the NIDC from
17.07.1989 to 27.02.1991, and the salary received by the
appellant from this contract used to be deposited to A/c No.
17012 of Bank of Baroda, Chanakyapuri Branch. The last
withdrawal from this account was made in June, 1991 and
thereafter, no deposits or withdrawals were made from this
account. At the time of the last withdrawal, the balance available
in A/C No. 17012 of Bank of Baroda was Rs. 119.30p.
iv. The appellant joined the Transport Department on 04.06.1993, as
a Motor Vehicle Inspector. However, during the period from
27.02.1991 to 04.06.1993 he was without a job. Meanwhile, the
appellant was also maintaining saving account No. 19747 in
Punjab National Bank (PNB), Kishan Ganj, Delhi. He was
depositing money in this account since the time of his
employment with NIDC but no major contributions were made in
this account during the period of his unemployment, i.e. from
March 1991 to June 1993. At the time of receipt of the first salary
from the Transport department the appellant was having a balance

CRL.A.285/2007 Page 4 of 75





of Rs. 80/- only in this account. Further, the appellant used to
deposit almost similar amount in this account as he used to get by
way of his salary from the Transport Department. As per the
record made available by the Transport Department (vide Ex.
PW7/A, Ex. PW7/B and PW7/C1-C3) the appellant had drawn a
total salary of Rs. 1,05, 172/- from June, 1993 to July, 1995, and
in the corresponding period he had deposited Rs. 1,02,064/- in
this account. During this period he also earned an interest of Rs.
1773/- on the savings in this account.
v. The appellant had also opened another account No. Sugam 508,
in Punjab National Bank, Kishan Ganj, Delhi in the name of self
and Smt. Renu Dahiya, wife of the appellant. This was a Fixed
Deposit account wherein the appellant had deposited Rs. 30,000/-
on 06.04.1994 vide FDR No. 117/94 for a period of 1 year, after
withdrawing the same amount from the account No. 19747 in
PNB, Kishan Ganj, Delhi. This FDR was renewed on 09.04.1995
vide FDR No. 139/95 for a period of three years. The appellant
also deposited Rs. 50,000/- in this account vide FDR No. 141/95
dated 09.04.1995 for a period of three years. This amount was

CRL.A.285/2007 Page 5 of 75





also transferred from the account No. 19747 in PNB, Kishan
Ganj, Delhi. A search was conducted at 307, Pkt. B, DDA Flats,
Hastsal, a property that belonged to the father of the appellant
(DW-2), and where Smt. Sarita Dahiya, wife of the appellant
resided. After this search, it was noted that the appellant had
made purchases worth Rs. 4,250/- for house hold items from
June, 1993 to August, 1995. As per investigation, the other bank
savings instruments, Post Office saving instruments, shares and
immovable properties were acquired prior to the joining of
service by the appellant in the Transport Department and were
acquired by his father and mother in the name of self and their
family members. The other properties and saving instruments
acquired during the period of the appellant’s employment with
the Transport department were not done by the appellant.
vi. Therefore, in light of the above investigation, it was concluded as
under:
Income During the Check Period (June ’93-Aug ’95)
Income from Salary Rs. 1,05,172.00
Income from Interest on bank savings
a/c 19747 Rs. 1,773.00
Income during check period Rs. 1, 06, 945.00
Expenditure During the Check Period

CRL.A.285/2007 Page 6 of 75





Kitchen Expenses (33% of take home salary) Rs. 34, 707.00
Assets acquired during check period
Two FDs in A/c No.Sugam 508, PNB,
Kishanganj Rs. 80, 000.00
Balance in A/C No. 19747, PNB,
Kishan Ganj, Delhi On 22.08.1995 minus
balance at the time of receipt of Salary
from transport Dpt. Rs. 23, 837.00
Movable Assets as per Observation Memo Rs. 4, 250.00
Total Assets Rs. 1, 08, 087.00

vii. Therefore, as per the preliminary investigation, the total
disproportionate assets acquired by the appellant during the
check period from June, 1993 to August, 1995 came out to be
(2+3-1) Rs. 35,849/- which amounts to approximately 33.5% of
the income of the appellant during the check period.
viii. Thereafter, sanction for prosecution was obtained from the
authority competent to remove the appellant from the post of
Motor Vehicle Inspector, Transport Department vide sanction
order dated 02.03.2000 (Ex. PW4/A).
ix. A charge-sheet into the subject case was filed by the CBI before
the Special Judge, CBI on 18.07.2000. The Special Judge took
cognizance of the subject case and framed charges against the

CRL.A.285/2007 Page 7 of 75





appellant under section 13(1)(e) of the PC Act punishable under
section 13(2) of the PC Act, on the ground that during the period
from 1989 - 21.08.1995 the appellant had acquired assets which
were disproportionate to his known source of income to the
extent of Rs. 35, 849/- which was approximately 33.5% of the
income during the said period and the appellant was unable to
satisfactorily account for, vide order on charge dated 11.01.2002.
The appellant pleaded not guilty and claimed trial. The Special
Judge, thereby, in the order on charge dated 11.01.2002 enlarged
the check period from June 1993-August 1995 to 1989-
21.08.1995, however, the disproportionate income in the latter
check period remained same as that under the former check
period.
x. At the stage of evidence, the prosecution examined a total of 11
witnesses, namely:
 PW1, Sh. Rajesh Kumar, Inspector, (Under Suspension),
North East District, Seelampur, Delhi, was the officer who
conducted the search at House No. 10834, Pratap Nagar, New
Delhi in connection with the subject case. He testified that the

CRL.A.285/2007 Page 8 of 75





search was conducted in the presence of independent
witnesses. He prepared the observation memo cum seizure
memo (Ex. PW1/A) qua the search conducted. He gave a
complaint (Ex. PW1/B) to the SP, CBI against the appellant
for having disproportionate assets beyond his known source
of income. On the basis of his complaint the subject FIR (Ex.
PW1/C) was registered.
 PW2, P.K. Gupta, Manager, Bank of Baroda, Chanakyapuri,
New Delhi, who verified the account statement pertaining to
account No. 17012 in Bank of Baroda, Chanakyapuri, Delhi
(Ex. PW-2/A) in the name of the appellant. He confirmed that
according to the account statement, there was a balance of Rs.
150.30/- as on July, 1999 and interest of Rs. 68.90/- was
posted in the account till 21.08.1995.
 PW3, Sh. O.P. Yadav, Manager, Punjab National Bank,
Kishan Ganj, Delhi, verified the account No. 508 vide Ex.
PW-3/A, out of which two FDRs were issued to the tune of
Rs. 30,000/- and Rs. 50,000/-. He also verified the account
No. 19747 in Punjab National Bank, Kishan Ganj, in the

CRL.A.285/2007 Page 9 of 75





name of the appellant, and confirmed that the last balance as
on 22.05.1995 on calculation come out to be Rs. 23, 837/-
vide Ex. PW-3/B.
 PW4, Sh. Virender Singh, Secretary, OBC Commission, NCT
of Delhi, was the sanctioning authority who granted sanction
for prosecution of the appellant vide Order No.
F.3A(216)Tpt./Vig./95/32 dated 2.3.2000 (Ex. PW-4/A). He
testified that before granting sanction he had perused
documents as well as statements of witnesses in respect of the
subject case and the sanction was granted after due
application of mind, in accordance with law.
 PW5, Sh. Raj Kumar, Messenger, FCI, HQ, New Delhi
accompanied Inspector Rajesh Kumar (PW1) for the search
conducted at the residence of the father of the appellant.
 PW6, Sh. A.K. Mahitra (Retd.), Chief General Manager,
(HRD & Personnel), NIDC, verified that the salary earned by
the appellant for the period 17.07.1989 to 27.02.1991 was a
consolidated salary of Rs. 2500/- per month vide his letter Ex.
PW-6/A.

CRL.A.285/2007 Page 10 of 75





 PW7, Ms. Rashmi Singh, Joint Director, Social Welfare
Department, Govt of NCT, Delhi, was working as Dy.
Director in Transport Department, Govt of NCT of Delhi and
verified the pay particulars of the appellant while he was
working at the Transport Department vide Ex. PW-7/A and
Ex. PW7/C-1 to 3.
 PW8, Sh. Ramnish, Addl. SP, CBI/CCIC, New Delhi, was
the officer who conducted further investigations into the
subject case and collected documents from the banks where
the appellant was having accounts, as well as collected the
salary details of the appellant.
 PW9, Sh. D.K. Barik, DSP, CBI, Bhuwneshwar, Orissa, who
took over investigation into the subject case from Sh.
Ramnish, ASP (PW8), and after receiving sanction from the
sanctioning authority (PW4) prepared the chargesheet and
filed it in the Court of Special Judge, CBI.
 PW10, Ms. Shobha Dutta, Inspector, Special Unit, CBI, also
joined the search conducted at House No. 10834, Pratap

CRL.A.285/2007 Page 11 of 75





Nagar, New Delhi, the residence of the father of the
appellant.
 PW11, Sh. D.M. Sharma, Inspector, SCB, CBI, Delhi,
conducted the search at Q. No. 307, Pocket – B, Hastsal,
belonging to the father of the appellant in possession of Smt.
Sarita Dahiya, wife of the appellant and her brother Sh.
Vinod Kumar, and prepared the search memo (Ex. PW5/A)
qua the said search.
xi. Thereafter, the appellant in his statement under section 313 of the
Code admitted that during the period from June, 1993 to August,
1995, he was working as Motor Vehicle Inspector in Transport
Department, Government of NCT of Delhi. He stated that it was a
matter of record when asked that after completion of Engineering in
1989, he joined NIDC as Assistant Engineer at a salary of Rs. 2500/-
per month (consolidated) from 17.07.1989 to 27.02.1991. To the
question that he remained without job from 27.02.1991 to 04.06.1993,
he stated that he was doing a private job and imparting tuitions. He
also stated it to be a matter of record when he was asked that he
deposited his salary in his SB account No. 17012 in Bank of Baroda,

CRL.A.285/2007 Page 12 of 75





Chanakyapuri and made withdrawal in June, 1991 leaving a balance of
Rs. 119.30/-. He also stated it to be a matter of record when he was
asked that he received Rs. 1, 05, 172/- as salary from June, 1993 to
August, 1995 from Transport Department. He further stated it to be a
matter of record when he was asked about the FDR of Rs. 50, 000/-
and Rs. 30, 000/-- in PNB and balance of Rs. 23, 837/- in SB Account
No. 19747 in PNB, Kishan Ganj, Delhi. He also stated that the search
was conducted at the house of his father and that he was not present at
the time of the search. He stated that he had been falsely implicated in
the subject case and no public witness has deposed against him. He
stated that there were no disproportionate assets and his kitchen
expenses were borne by his father out of the agricultural income and
he had not spent any money on kitchen expenses during the check
period. He also added that he used to receive financial assistance from
his Nani , and that he was innocent.
xii. The appellant examined two witnesses in his defence, namely:
 DW1, Sh. Mahavir Singh Dahiya, his father, who deposed
that he has income from a milk dairy and that he used to bear
the kitchen expenses of his son, the appellant, however, in

CRL.A.285/2007 Page 13 of 75





his cross-examination he stated that he had no knowledge
that his son had two wives; and
 DW2, Sh. Anand Singh, Sub Post Master, Padam Nagar,
Post Office, Delhi, deposed that an RD Account No. 418867
was opened by the appellant on 03.11.1989 and was closed
on 08.11.1994, and that the maturity value of this account
was Rs. 1,60,060/-, which were paid to the appellant on
08.11.1994.
xiii. After going through the material on record the Ld. Special Judge
convicted the appellant for an offence under section 13(1)(e) of the PC
Act punishable under section 13(1) of the PC Act. The grounds on
which the Ld. Special Judge convicted the appellant are as under:
 The Ld. Special Judge came to a conclusion that the
prosecution has proved that the appellant had worked as an
Assistant Engineer, drawing a salary of Rs. 2500/- per month
from 17.07.1989 to 27.02.1991 with NIDC and thus earned
Rs. 48,750/- as a public servant. Further, the Ld. Special
Judge observed that the appellant earned a salary of Rs.
1,05,172/- while working as a Motor Vehicle Inspector in the

CRL.A.285/2007 Page 14 of 75





Transport Department of NCT of Delhi from 04.06.1993 till
August, 1995. Therefore, the total salary income of the
appellant was calculated to be 1,53,922/- during the period
from July, 1989 to August, 1995. As per the statement of
account (Ex.PW3/B), the appellant had also earned an
interest of Rs. 2066/-. The Ld. Trial Court found the total
income of the appellant as Rs. 1,55,988/-.
 The Ld. Special Judge, took into account the submission of
the counsel for the appellant that the appellant deposited Rs.
2000/- per month from 03.11.1989 to 08.11.1994 in a RD
Account No. 418867. Considering this submission, the Ld.
Special Judge concluded that the appellant must have
deposited Rs. 1,20,000/- during the afore-stated period.
Further, while the appellant was a public servant from
November, 1989 till February, 1991 and June, 1993 to
November, 1995 (33 months), he must have deposited Rs.
66,000/-, and while he was without a job from 27.02.1991 to
04.06.1993 (27 months) he deposited Rs. 54,000/-. Since the
appellant did not lead any evidence to prove his other source

CRL.A.285/2007 Page 15 of 75





of income during the period 27.02.1991 to 04.06.1993, a fact
which was specially within his knowledge under section 106
of the Indian Evidence Act, the Ld. Special Judge drew an
adverse inference against the appellant. It was presumed that
the appellant was depositing his ill-gotten money at the rate
of Rs. 2000/- per month from November, 1989 to February,
1991 and June, 1993 to November, 1994, while he was
working as a public servant and also during the period when
he remained unemployed at the rate of Rs. 2000/- per month
in the RD Account No. 418867.
 To calculate the total assets of the appellant the Ld. Special
Judge took into account the following:
Two FDRs in PNB worth Rs. 80,000/-
Saving Bank Account, PNB Balance worth Rs. 23,917/-
Principal Amount in RD Account worth Rs. 1,20,000/-
 Thus, the Ld. Special Judge calculated the total assets to be
Rs. 2, 23,917/-.

CRL.A.285/2007 Page 16 of 75





 It was observed by the Ld. Special Judge that the
Observation-cum-Search Memo states that at the time of
search Smt. Saroj Devi (mother of the accused) and Smt.
Renu Devi (wife of the accused) were present in House No.
10834, Gali No. 18, Pratap Nagar, the premises where the
search was conducted. Here, the appellant did not dispute
that Smt. Renu, was his wife as he did not cross-examine
the witness (PW-1) who proved the observation-cum-search
memo. On the other hand, PW-11 deposed that he
conducted search at House No. 307, Pocket-B, Hastsal, New
Delhi belonging to Sh. Mahavir Singh Dahiya, and the
house was in possession of Smt. Sarita Dahiya, wife of the
appellant. The appellant did not challenge PW-11 that Smt.
Sarita Dahiya was not his wife. Therefore, it was concluded
by the Ld. Special Judge that the appellant has two wives.
Thus, the appellant was bearing expenses of living with
both his wives at different addresses. Even if the argument
that the father of the appellant was bearing the kitchen
expenses with regard to one of the house, the Ld. Special

CRL.A.285/2007 Page 17 of 75





Judge considered the fact that the appellant must be bearing
the kitchen expenses for his second house with Smt. Sarita
Devi. On the basis of the decision of the Hon'ble Supreme
Court in Sajjan Singh vs. State of Punjab, reported as AIR
1964 SC 464, the Ld. Special Judge observed that the
appellant must have spent at least one third of his total
income as living expenses. Therefore, calculating the living
expense of one household of the appellant the Ld. Special
Judge came to the figure of Rs. 51, 307/- i.e. one third of
Rs. 1,55,988/- (his total income).
 Even though the prosecution had claimed that Sh. Rajesh
Kumar, Inspector (PW-1) had found moveable articles
worth Rs. 4250/- during the search conducted at House No.
10834, Pratap Nagar, New Delhi, the Ld. Special Judge
observed that the prosecution had failed to prove as to
which article found during the said search belonged to the
appellant. Therefore, the Ld. Special Judge observed that
the prosecution had failed to prove that the appellant was in
possession of moveable articles worth Rs. 4250/-.

CRL.A.285/2007 Page 18 of 75





 Accordingly, the Ld. Special Judge, arrived at the
conclusion that total savings of the appellant as per the
income earned by the appellant as a public servant (Rs.
1,53,922/- + Rs. 2066(as interest), after deducting the living
expenses (Rs. 51,307/-), should be Rs. 1,04,685/- but
against it, the appellant was found to possess movable assets
worth Rs. 2,23,917/-. The excess income of Rs. 1,19,232
was not explained by the appellant.
 The disproportionate assets calculated by the Ld. Special
Judge can be summarized as under:
Income during the Check Period
Income from employment at
NIDC (17.07.1989-27.02.1991) Rs. 48,750/-
Income from Transport
Dept (04.06.1993-August, 1995) Rs. 1,05,172/-
Total salary Rs. 1,53,922/-
Interest Rs. 2066/-
Total Income Rs. 1,55,988/-
Assets during check period
Two FDRs in PNB Rs. 80,000/-
Balance in PNB A/c Rs. 23,917/-

CRL.A.285/2007 Page 19 of 75





Principal Deposit in RD A/c Rs. 1,20,000/-
Total Assets Rs. 2,23,917/-
Kitchen/Living Expenses Rs. 51,307/-
Disproportionate Assets 1,19,232/-
4. Mr. Vikram Singh, learned counsel appearing on behalf of the
appellant would urge that in the order framing charges against the appellant
dated 11.01.2002, the check period was enlarged from an initial period of
June 1993 to August 1995 to the period of July, 1989 to August, 1995 ,
however the court, did not consider the income amounting to Rs. 48,750/-
during the period 1989-1991. It was contended that the total income that was
taken into account by the trial court while framing of charges was Rs.
1,06,945/- (for the period June, 1993 to August, 1995), meanwhile the
kitchen expenses calculated were Rs. 34,707/-, and the total assets were
calculated as Rs. 1,08,087/-. In view of this data the trial court calculated the
total disproportional assets as Rs. 35, 849/- (Rs. 1,08,087+Rs. 34,707 - Rs.
1,06,945) i.e. 33.5% of the appellant's total income. Mr. Singh urged that the
income of the enlarged period was not included in the total income of the
appellant, and if the income would have been included the disproportionate
asset would have amounted to only 1.85% of his income. Thus, it was urged

CRL.A.285/2007 Page 20 of 75





that if the income during the period 1989-1991 was included, no case would
have been made out against the appellant under the PC Act and the appellant
should have been acquitted by the Trial Court under section 232 of the Code.
5. Mr. Singh, would further urge that the sanction for prosecution
obtained against the appellant was for the check period of June, 1993-
August, 1995 and not for the enlarged period.

6. It has been further urged by the counsel appearing on behalf of the
appellant that the latter was only asked to explain an amount of Rs. 35,849/-
as disproportionate assets, however, the extra income of Rs. 1,20,000/- was
produced by way of defence evidence. Thus, the appellant was convicted on
the basis of the evidence provided by him, however, he was not given an
opportunity to explain this income.
7. Lastly, it has been urged by the counsel for the appellant that the latter
was only asked to explain disproportionate assets amounting to Rs. 35,849/-
in his statement under section 313 of the Code. However, the appellant was
convicted for having disproportionate assets amounting to Rs. 1,19,232/-. It
was submitted that evidence against the appellant, if not put up to him for
eliciting answers against queries under section 313 of the Code, cannot be
used to convict the appellant. To buttress this submission, learned counsel

CRL.A.285/2007 Page 21 of 75





appearing on behalf of the appellant would place reliance on Sharad
Birdichand Sarda vs. State of Maharashtra , reported as AIR 1984 SC
1622 .
8. On the other hand, Ms. Sonia Mathur, learned SPP appearing on
behalf of the CBI would urge that the total income of the appellant can be
calculated as under:
Income during 17.07.1989 to 27.02.1991
(At NIDC) Rs. 48, 750/-
Income during 04.06.1993 – June, 1995 Rs. 1, 05, 172/-
(At Transport Department)

Total Salary Rs. 1, 53, 172/-
+interest Rs. 2, 066/-

Total Income Rs. 1, 55, 988/-
However, the assets were found to be as under:
2 FDRs in PNB Rs. 80, 000/-
Balance in savings A/c Rs. 23, 917/-
Principal Amount deposited in RD A/c Rs. 1, 20, 000/-
Total Assets Rs. 2, 23, 917/-

9. Ms. Sonia Mathur, learned SPP appearing on behalf of the CBI would
further urge that the learned trial court has correctly relied on the judgment
of Sajjan Singh vs. State of Punjab , reported as AIR 1964 SC 464 , and

CRL.A.285/2007 Page 22 of 75





rd
calculated the kitchen expenditure of the appellant as 1/3 of his total
income of Rs. 1,53,822/-, which amounted to Rs. 51,307/-. Further, it has
been urged that on the basis of this data, the trial court has correctly assessed
the disproportional asset of the appellant amounting to Rs. 1,19,232/- (Total
Assets – (Total income – kitchen expenses)).
10. It has been urged on behalf of the CBI that the appellant was
depositing a sum of Rs. 2000/- per month for a period of 03.11.1989-
08.11.1994 in the RD Account. An amount of Rs. 66, 000/- was deposited in
the RD Account during the period when the appellant was a public servant,
i.e. November, 1989 to February, 1991 and June, 1993 to November, 1994.
An amount of Rs. 54, 000/- was deposited in the RD Account during the
period when he was unemployed, i.e. from 27.02.1991 to 04.06.1993. It was
urged that the appellant was unable to substantiate any source of income
during the period when he was unemployed, thus, the said income during the
period when he was unemployed can only be construed as his ill gotten
money earned while working as public servant.
11. It was further argued that the burden of proving that he was doing a
private job and imparting tuitions during 27.02.1991-04.06.1993 was on the
appellant, since this fact was in the exclusive knowledge of the appellant

CRL.A.285/2007 Page 23 of 75





within the meaning of section 106 Evidence Act, and thus was required to
establish this fact. It was further argued that the burden of proof in this
regard was not discharged by the appellant, thus, a presumption under
section 114 Evidence Act was drawn against him. ( State of Maharashtra vs.
Wasudeo Ramchandra Kaidalwar , reported as (1981) 3 SCC 199 ).
12. Ms. Sonia Mathur, learned SPP canvassed that the order on charge
inadvertently mentioned the amount of disproportionate income to be Rs.
35,849/- which was the same as given in the chargesheet. It was submitted
that the inadvertent error with regard to the total disproportionate asset in the
order framing charge has not caused any prejudice to the appellant. In this
regard Ms. Mathur would rely on the landmark decision of the Supreme
Court in the case of Willie (William) Slaney vs. State of Madhya Pradesh ,
reported as 1956 Cri LJ 291 , and the decision of the Bombay High Court in
Sudhakar Bhaskar Pore vs. The State of Maharashtra , reported as 1993 (3)
BomCR 482 .
13. On the question of validity of sanction for prosecution, Ms. Mathur,
learned SPP has urged that the sanction was duly granted by the sanctioning
authority (PW4) after going through the relevant papers including the
complaint, FIR, seizure-cum-observation memo, documents and statement of

CRL.A.285/2007 Page 24 of 75





witnesses pertaining to the subject investigation. Thus, it has been submitted
that the sanctioning authority has applied its mind.
14. I have heard counsel on behalf of the parties and perused the evidence
on record. In my view, the issues that arise for consideration in the present
appeal are as under:
o Issue 1: Whether the error/omission in the order framing
charges has caused prejudice to the appellant?
o
Issue 2: Whether the sanction for prosecution dated 2.03.2000
was vitiated in view of the circumstance that the check period
was enhanced from 1993-1995 to 1989-1995 at the stage of
framing of charge?
o Issue 3: Whether there was an omission on part of the Ld.
Special Judge to put relevant/material questions to the
appellant while recording his statement under section 313 of
the Code?
o Issue 4: Whether the appellant was able to satisfactorily
account for the assets found disproportionate to his known
sources of income?


CRL.A.285/2007 Page 25 of 75





Issue No.1: Whether the error/omission in the order framing charges
has caused prejudice to the appellant?
15. At this juncture, it is necessary to collate the facts as are relevant to
examine the issue at hand. It is an admitted position that the subject FIR was
registered against the appellant for possessing assets disproportionate to his
known sources of income during his tenure as a Motor Vehicle Inspector
with the Transport Department (from June 1993 to August 1995) and as an
Assistant Engineer with the NIDC (from 1989 to 1991). The sanction for
prosecution vide sanction order dated 02.03.2000, however, was obtained for
the check period from June, 1993 to August, 1995 from the sanctioning
authority, i.e., the authority competent to remove the appellant from his post
at the Transport Department. The chargesheet filed after investigation gave
details of income expenditure and assets for the check period of June 1993 to
August 1995, and stated that the disproportionate assets acquired by the
appellant during the afore-stated check period amounted to Rs. 35,849/-,
which is 33.5% of the income during the check period. However, the order
on charge dated 11.01.2002, enlarged the check period to 1989 to August
1995, but without taking into consideration the income for the period 1989
to May, 1993. Therefore, the order on charge dated 11.01.2002, erroneously

CRL.A.285/2007 Page 26 of 75





mentioned the disproportionate assets acquired during the enlarged check
period as Rs, 35, 849/-, which is 33.5% of the income during the previous
check period.
16. A plain reading of the chargesheet in the subject FIR and the order on
charge dated 11.01.2002 brings to light the fact that the there is an error in
the order framing charges dated 11.01.2002. The order on charge enlarges
the check period for calculation of disproportionate assets, without taking
into account the income for the enlarged period. This has led to a
miscalculation in the amount of assets disproportionate to the known sources
of income of the appellant.
17. The effect of an error or omission in the framing of a charge has been
specifically dealt with under sections 225, 464 and 465 of the Code.
Section 225 of the Code reads as under:

Section 464 of the Code reads as under:
“464.Effect of omission to frame, or absence of, or error in,
charge.-

CRL.A.285/2007 Page 27 of 75





(1) No finding, sentence or order by a Court of competent
jurisdiction shall be deemed invalid merely on the ground
that no charge was framed or on the ground of any error,
omission or irregularity in the charge including any
misjoinder of charges, unless, in the opinion of the Court of
appeal, confirmation or revision, a failure of justice has in
fact been occasioned thereby.
(2) If the Court of appeal, confirmation or revision is of
opinion that a failure of justice has in fact been occasioned,
it may-
(a) in the case of an omission to frame a charge, order that a
charge be framed and that the trial be recommenced from
the point immediately after the framing of the charge;
(b) in the case of an error, omission or irregularity in the
charge, direct a new trial to be had upon a charge framed in
whatever manner it thinks fit:
Provided that if the Court is of opinion that the facts of the
case are such that no valid charge could be preferred
against the accused in respect of the facts proved, it shall
quash the conviction.”
Section 465 of the Code reads as under:
“465.Finding or sentence when reversible by reason of
error, omission or irregularity.-
(1) Subject to the provisions hereinbefore contained, no
finding, sentence or order passed by a Court of competent
jurisdiction shall be reversed or altered by a Court of
appeal, confirmation or revision on account of any error,
omission or irregularity in the complaint, summons,
warrant, proclamation, order, judgment or other
proceedings before or during trial or in any inquiry or other
proceedings under this Code, or any error, or irregularity in
any sanction for the prosecution, unless in the opinion of
that Court, a failure of justice has in fact been occasioned
thereby.

CRL.A.285/2007 Page 28 of 75





(2) In determining whether any error, omission or
irregularity in any proceeding under this Code, or any error,
or irregularity in any sanction for the prosecution has
occasioned a failure of justice, the Court shall have regard
to the fact whether the objection could not should have
been raised at an earlier stage in the proceedings. ”

(Emphasis Supplied)

18. The provisions of the Code of Criminal Procedure are to the effect
that errors in charge or even the complete absence of charge do not vitiate a
trial, so long as there is no failure of justice/prejudice caused to the accused.
This position has been confirmed by the Supreme Court in Willie (William)
Slaney vs. The State of Madhya Pradesh , ( supra) as under:

CRL.A.285/2007 Page 29 of 75






(Emphasis Supplied)

State of Punjab , reported as (2014) 11 SCC 508, has held that a mere
technical defect in the framing would not vitiate a trial unless the appellant is
able to show prejudice caused to him. The court observed as folows:
"12. As there were doubts about the conflict/correctness of these
two judgments, the matter was decided by a Constitution Bench
in Willie(William) Slaney v. State of M.P. [AIR 1956 SC 116 :
1956 Cri LJ 291] and the Court came to the following
conclusions: (AIR pp. 137-38, paras 86 & 88)
“ 86 . Sections 34, 114 and 149 of the Penal Code provide for
criminal liability viewed from different angles as regards actual
participants, accessories and men actuated by a common object
or a common intention; ‘and the charge is a rolled-up one
involving the direct liability and the constructive liability’
without specifying who are directly liable and who are sought to
be made constructively liable.
In such a situation, the absence of a charge under one or other
of the various heads of criminal liability for the offence cannot
be said to be fatal by itself, and before a conviction for the
substantive offence, without a charge, can be set aside, prejudice
will have to be made out. In most of the cases of this kind,
evidence is normally given from the outset as to who was
primarily responsible for the act which brought about the offence
and such evidence is of course relevant.
*
88 . This judgment should not be understood by the
subordinate courts as sanctioning a deliberate disobedience to the
mandatory requirements of the Code, or as giving any licence to
proceed with trials without an appropriate charge. The omission
to frame a charge is a grave defect and should be vigilantly

CRL.A.285/2007 Page 30 of 75

CRL.A.285/2007 Page 31 of 75





and that he was not informed as to what was the real case against
him and that he could not defend himself properly, no
interference is required on mere technicalities. Conviction order
in fact is to be tested on the touchstone of prejudice theory.”


(Emphasis Supplied)


20. In the instant case, it is observed that the order on charge does contain
wrong particulars. In light of the facts of present case, and the settled legal
position, what needs to be examined is whether due to the said error, any
failure of justice has been occasioned or prejudice caused to the appellant in
the instant case.
21. The test of prejudice has been elaborately discussed in the decision of
the Constitution Bench of the Supreme Court in Willie (William) Slaney
(Supra) . The Hon'ble Supreme Court by a majority of 3:2 held as under:

" 5. Before we proceed to set out our answer and examine the
provisions of the Code, we will pause to observe that the Code is
a code of procedure and, like all procedural laws, is designed to
further the ends of justice and not to frustrate them by the
introduction of endless technicalities. The object of the Code is
to ensure that an accused person gets a full and fair trial along
certain well-established and well-understood lines that accord
with our notions of natural justice. If he does, if he is tried by a
competent court, if he is told and clearly understands the nature
of the offence for which he is being tried, if the case against him

CRL.A.285/2007 Page 32 of 75

23. The marginal note to Section 225 is headed “Effect of errors”
and the section states that:
“ No error in stating either the offence or the particulars
required to be stated in the charge, and no omission to state the
offence or those particulars, shall be regarded at any stage of the
case as material, unless the accused was in fact misled by such
error or omission, and it has occasioned a failure of justice.”
Therefore, when there is a charge and there is either error or
omission in it or both, and whatever its nature, it is not to be
regarded as material unless two conditions are fulfilled both of
which are matters of fact: ( 1 ) the accused has in fact been misled
by it and ( 2 ) it has occasioned a failure of justice. That, in our
opinion, is reasonably plain language.

56. Now what is an accused person entitled to know from the
charge and in what way does the charge in this case fall short of
that? All he is entitled to get from the charge is:
( 1 ) the offence with which he is charged, Section 221(1),
Criminal Procedure Code,
( 2 ) the law and section of the law against which the offence is
said to have been committed, Section 221(4),
( 3 ) particulars of the time, Section 222(1), and
( 4 ) of the place, Section 222(1), and
( 5 ) of the person against whom the offence is said to have
been committed, Section 222(1), and
( 6 ) when the nature of the case is such that those particulars
do not give him sufficient notice of the matter with which he is
charged, such particulars of the manner in which the alleged

CRL.A.285/2007 Page 33 of 75

SCC 166, the Supreme Court relied on the decision of the Supreme Court in
Willie Slaney (Supra) and observed as under:

CRL.A.285/2007 Page 34 of 75

(Emphasis Supplied)

23. In the case of Nani Gopal Mitra v. State of Bihar , reported as (1969)
2 SCR 411, the Supreme Court while dealing with a bribery case, rejected
the argument on defect in charge by observing as under:


CRL.A.285/2007 Page 35 of 75

(Emphasis Supplied)

24. The meaning and scope of failure of justice and prejudice was again
discussed by the Hon'ble Supreme Court in Darbara Singh vs. State of
Punjab , reported as (2012) 10 SCC 476, wherein it was held as under:

CRL.A.285/2007 Page 36 of 75

21. “Failure of justice” is an extremely pliable or facile
expression, which can be made to fit into any situation in any
case. The court must endeavour to find the truth. There would be
“failure of justice”; not only by unjust conviction, but also by
acquittal of the guilty, as a result of unjust failure to produce
requisite evidence. Of course, the rights of the accused have to
be kept in mind and also safeguarded, but they should not be
overemphasised to the extent of forgetting that the victims also
have rights. It has to be shown that the accused has suffered

CRL.A.285/2007 Page 37 of 75

(Emphasis Supplied)

25. In view of the above discussion, the legal proposition that emerges is
that in order to ascertain whether any prejudice has been caused due to an
error or omission in the framing of a charge, the court must consider the
following factors:

a) whether the accused has had a fair trial, i.e.
i) whether he was aware of what he was being tried for; and
ii) whether he had knowledge of the facts sought to be
established against him clearly; and

CRL.A.285/2007 Page 38 of 75





iii) whether he was given a full and fair chance to defend
himself against the charge.
b) whether an objection could have been raised at an earlier stage
during the proceedings or not.
26. In the instant case, the order on charge dated 11.01.2002 clearly
mentioned the offence that is sought to be proved against the appellant, i.e.
the offence of possessing assets disproportionate to his known sources of
income. The order on charge dated 11.01.2002 also clearly and
unambiguously mentioned the check period which was being used to
calculate the income and disproportionate assets of the appellant. The
appellant was thus given a fair opportunity to defend the case against him, as
he was aware of the period for which he was being alleged of having
disproportionate assets. It is also pertinent to note that the objection of error
in the charge was not raised by the appellant at any previous occasion at the
stage of trial.
27. In light of the aforesaid factual matrix and the settled legal position, in
my view, no prejudice was caused to the appellant due to the erroneous
framing of charge.

CRL.A.285/2007 Page 39 of 75





28. The mere miscalculation of the amount of disproportionate assets, in
my opinion, falls in the category of a technical error and does not vitiate the
trial by way of which the appellant has been convicted, as no prejudice has
been caused to him.
29. In view of the foregoing, issue no. 1 has been decided against the
appellant.
Issue No. 2: Whether the sanction for prosecution dated 2.03.2000 was
vitiated in view of the circumstance that the check period was enhanced
from 1993-1995 to 1989-1995 at the stage of framing of charge?
30. Insofar as the issue whether sanction for prosecution is vitiated
because of enlargement of the check period is concerned, it has been argued
on behalf of the appellant that since the sanction for prosecution was
accorded only for the check period of 1993-1995, the appellant could not
have been tried for an extended check period i.e. 1989-1995 without
obtaining a fresh sanction for prosecution.
31. In this regard, learned counsel appearing on behalf of CBI would place
reliance on the decision of the Bombay High Court in Sudhakar Bhaskar
Pore v. State of Maharashtra ( supra) where a single judge bench of the
Bombay High Court extended the scope of a sanction for prosecution

CRL.A.285/2007 Page 40 of 75





obtained to try the appellant therein for an offence, to try the latter with two
earlier instances of the same offence, on the ground that no prejudice was
caused to the appellant. In furtherance thereof, learned counsel appearing on
behalf of the CBI would urge that in the instance case, although the sanction
for prosecution dated 2.3.2000 was only obtained for the check period of
1993-1995, the appellant could have been tried for an enlarged check period
under the same sanction for prosecution if there was no prejudice caused to
the appellant in doing so.
32. The Supreme Court in Ashok Tshering Bhutia v. State of Sikkim
reported as (2011) 4 SCC 402, has confirmed its earlier decisions holding
that in order to vitiate a sanction order for prosecution of an accused on the
basis of an error defect or irregularity, the accused has to demonstrate that
failure of justice has been occasioned. In para 25 of the report the Hon’ble
Supreme Court has observed as under:
“25. Same remained the position regarding sanction. In the
absence of anything to show that any defect or irregularity
therein caused a failure of justice, the plea is without substance.
A failure of justice is relatable to error, omission or irregularity
in the sanction. Therefore, a mere error, omission or irregularity
in sanction is not considered to be fatal unless it has resulted in a
failure of justice or has been occasioned thereby. Section 19(1)
of the PC Act, 1988 is a matter of procedure and does not go to
the root of the jurisdiction and once the cognizance has been
taken by the Court under CrPC, it cannot be said that an invalid

CRL.A.285/2007 Page 41 of 75

33. I agree with the submissions made on behalf of CBI insofar as it
relates to the argument, that the appellant could have been tried for an
extended check period, without obtaining a fresh sanction for prosecution for
such extended check period, if no prejudice was caused to him. In view of
the settled legal position that the purpose of a sanction is to give jurisdiction
to the Court to take cognizance of the offence and further that the appellant
has been tried for the very same offence for which sanction for prosecution
has been accorded and it is only the check period that has been enhanced, the
sanction for prosecution is not vitiated.
34. In my view, in terms of the observations made by the Hon’ble
Supreme Court of India in Ashok Tshering Bhutia (Supra), with regard to
sanction for prosecution, the appellant has failed to demonstrate any failure

CRL.A.285/2007 Page 42 of 75





of justice caused to him due to the enlargement of check period and therefore
his contention in this regard is devoid of any merit.
35. In light of the above discussion, issue no. 2 is decided against the
appellant.
Issue No.3: Whether there was an omission on part of the Ld. Special
Judge to put relevant/material questions to the appellant while
recording his statement under section 313 of the Code?
36. In order to determine the issue at hand, it is relevant to look at the
object and purpose of section 313 of the Code. The Hon’ble Supreme Court
in Nar Singh v. State of Haryana , reported as (2015) 1 SCC 496 , while
following its numerous previous decisions, discussed the scope, purpose and
object of section 313 of the Code as under:
“10. There are two kinds of examination under Section 313
CrPC. The first under Section 313(1)( a ) CrPC relates to any
stage of the inquiry or trial; while the second under Section
313(1)( b ) CrPC takes place after the prosecution witnesses are
examined and before the accused is called upon to enter upon his
defence. The former is particular and optional; but the latter is
general and mandatory. In Usha K. Pillai v. Raj K.
Srinivas [(1993) 3 SCC 208 : 1993 SCC (Cri) 824] , this Court
held that: (SCC p. 212, para 3)
3 . … the court is empowered by [Section 313(1)] clause ( a ) to
question the accused at any stage of the inquiry or trial; while
[Section 313(1)] clause ( b ) obligates the Court to question the
accused before he enters his defence on any circumstance
appearing in prosecution evidence against him.

CRL.A.285/2007 Page 43 of 75

CRL.A.285/2007 Page 44 of 75





“ 18 . What is the object of examination of an accused under
Section 313 of the Code? The section itself declares the object in
explicit language that it is ‘for the purpose of enabling the
accused personally to explain any circumstances appearing in the
evidence against him’. In Jai Dev v. State of Punjab [AIR 1963
SC 612 : (1963) 1 Cri LJ 495] Gajendragadkar, J. (as he then
was) speaking for a three-Judge Bench has focussed on the
ultimate test in determining whether the provision has been fairly
complied with. He observed thus: (AIR p. 620, para 21)
‘ 21 . … The ultimate test in determining whether or not the
accused has been fairly examined under Section 342 would be to
enquire whether, having regard to all the questions put to him, he
did get an opportunity to say what he wanted to say in respect of
prosecution case against him. If it appears that the examination
of the accused person was defective and thereby a prejudice has
been caused to him, that would no doubt be a serious infirmity.’
19 . Thus it is well settled that the provision is mainly intended to
benefit the accused and as its corollary to benefit the court in
reaching the final conclusion.
20 . At the same time it should be borne in mind that the
provision is not intended to nail him to any position, but to
comply with the most salutary principle of natural justice
enshrined in the maxim audi alteram partem. The word ‘may’ in
clause ( a ) of sub-section (1) in Section 313 of the Code indicates,
without any doubt, that even if the court does not put any
question under that clause the accused cannot raise any grievance
for it. But if the court fails to put the needed question under
clause ( b ) of the sub-section it would result in a handicap to the
accused and he can legitimately claim that no evidence, without
affording him the opportunity to explain, can be used against
him. It is now well settled that a circumstance about which the
accused was not asked to explain cannot be used against him.”
16. Undoubtedly, the importance of a statement under Section
313 CrPC, insofar as the accused is concerned, can hardly be
minimised. The statutory provision is based on the rules of
natural justice for an accused, who must be made aware of the
circumstances being put against him so that he can give a proper
explanation to meet that case. If an objection as to Section 313
CrPC statement is taken at the earliest stage, the court can make
good the defect and record additional statement of the accused as
that would be in the interest of all. When objections as to

CRL.A.285/2007 Page 45 of 75

CRL.A.285/2007 Page 46 of 75

CRL.A.285/2007 Page 47 of 75

CRL.A.285/2007 Page 48 of 75





fallout of the omission to put a question to the accused on vital
circumstance appearing against him and this Court has held that
the appellate court can question the counsel for the accused as
regards the circumstance omitted to be put to the accused and in
para 16 it was held as under: (SCC p. 806)
“ 16 . … It is trite law, nevertheless fundamental, that the
prisoner's attention should be drawn to every inculpatory
material so as to enable him to explain it. This is the basic
fairness of a criminal trial and failures in this area may gravely
imperil the validity of the trial itself, if consequential miscarriage
of justice has flowed. However, where such an omission has
occurred it does not ipso facto vitiate the proceedings and
prejudice occasioned by such defect must be established by the
accused. In the event of evidentiary material not being put to the
accused, the court must ordinarily eschew such material from
consideration. It is also open to the appellate court to call upon
the counsel for the accused to show what explanation the
accused has as regards the circumstances established against
him but not put to him and if the accused is unable to offer the
appellate court any plausible or reasonable explanation of such
circumstances, the Court may assume that no acceptable answer
exists and that even if the accused had been questioned at the
proper time in the trial court he would not have been able to
furnish any good ground to get out of the circumstances on
which the trial court had relied for its conviction. In such a case,
the Court proceeds on the footing that though a grave
irregularity has occurred as regards compliance with Section
342 CrPC, the omission has not been shown to have caused
prejudice to the accused .”

25. The same view was reiterated by this Court in State (Delhi
Admn.) v. Dharampal [(2001) 10 SCC 372 : 2003 SCC (Cri)
1012] , wherein this Court has held as under: (SCC pp. 376-77,
paras 13-14)
“ 13 . Thus it is to be seen that where an omission, to bring the
attention of the accused to an inculpatory material has occurred
that does not ipso facto vitiate the proceedings. The accused
must show that failure of justice was occasioned by such
omission. Further, in the event of an inculpatory material not
having been put to the accused, the appellate court can always
make good that lapse by calling upon the counsel for the accused

CRL.A.285/2007 Page 49 of 75

CRL.A.285/2007 Page 50 of 75

(Emphasis Supplied)

37. The settled position of law that can be discerned from Nar Singh
( supra), is that the object of Section 313 of the Code is to bring the substance
of accusation to the latter to enable the accused to explain each and every
circumstance appearing in evidence against him. The attention of the accused

CRL.A.285/2007 Page 51 of 75





must specifically be brought to inculpatory pieces of evidence, to give him
an opportunity to offer an explanation if he chooses to do so.
38. The Supreme Court, since time immemorial, has held that a mere
omission to question the accused with regard to certain incriminatory
circumstances would not result in automatic exclusion of such evidence and
the accused must demonstrate prejudice. It has also been held that when such
an objection is not raised before the trial court which could have easily cured
the defect, and such objection is belatedly raised for the first time before the
appellant court, that itself demonstrates that the appellants did not feel any
prejudice. Furthermore, the Apex Court has also held that, all which an
accused is entitled to in such cases is that, his explanation, if any, be
considered by the Appellate Court while evaluating the prosecution evidence
and no more. ( Ref: Rekha Sharma v. C.B.I. reported as (2015) 218 DLT 1)
39. In Rekha Sharma (supra) , rendering observations on the object of
section 313 of the CrPC, this Court held as under:

CRL.A.285/2007 Page 52 of 75





“21. In support of his contention that the failure to
put the relevant point against the appellant Hari
Singh would affect the final conclusion of the High
Court, Mr. Anthony has relied on a decision of this
Court in Hate Sigh Bhagat Singh v. State of
Madhya Bharat AIR 1953 SC 468. In that case, this
Court has no doubt referred to the fact that it was
important to put to the accused each material fact
which is intended to be used against him and to
afford him a chance of explaining it if he can. But
these observations must be read in the light of the
other conclusions reached by this Court in that
case. It would, we think, be incorrect to suggest
that these observations are intended to lay down a
general and inexorable rule that wherever it is
found that one of the point used against the accused
person has not been put to him, either the trial in
vitiated or his conviction is rendered bad. The
examination of the accused person under s. 342 is
undoubtedly intended to give him an opportunity to
explain any circumstances appearing in the
evidence against him. In exercising its powers
under s. 342, the Court must take care to put all
relevant circumstances appearing in the evidence to
the accused person. It would not be enough to put a
few general and broad questions to the accused, for
by adopting such a course the accused may not get
opportunity of explaining all the relevant
circumstances. On the other hand, it would not be
fair or right that the Court should put to the accused
person detailed questions which may amount to his
cross-examination. The ultimate test in determining
whether or not the accused has been fairly
examined under s. 342 would be to enquire
whether, having regard to all the questions put to
him, he did get an opportunity to say what he
wanted to say in respect of prosecution case against
him. If it appears that the examination of the
accused person was defective and thereby a
prejudice has been caused to him, that would no
doubt be a serious infirmity. It is obvious that no

CRL.A.285/2007 Page 53 of 75

(Emphasis supplied)

40. In order to ascertain whether the relevant questions were put to the
appellant in his statement under section 313 of the Code, the said statement
is reproduced hereinbelow:
“Qus.1 It is in evidence against you that during the
period June, 1993 to August, 1995 you were working as
Motor Vehicle Inspector in Transport Department, Govt. of
NCT of Delhi. What have you to say?
Ans. It is correct.
Qus. 2 It is also in evidence against you that you after
completion of Engineering Course in 1989 joined National
Industrial Development Corporation Ltd. On contract basis as
Assistant Engineer on consolidated salary of Rs. 2500/- per
month and you worked there from 17.7.89 to 27.2.91 and a

CRL.A.285/2007 Page 54 of 75





letter Ex. PW6/A in this regard has been issued by PW6 Sh.
A.K. Mahitra. What have you to say?
Ans. It is a matter of record.
Qus. 3 It is further in evidence against you that you remained
without any job during the period 27.2.91 to 4.6.93. What
have you to say?
Ans. It is incorrect. I was doing private job and also
imparting tuitions.
Qus. 4 It is further in evidence against you that on the basis of
complaint Ex. PW1/B of Sh. Rajesh Kumar Inspector,
CBI/ACB, FIR Ex PW1/C was registered under the signature
of the then SP. What have you to say?
Ans. I do not know.
Qus. 5 It is further in evidence against you that on 22.8.95 Sh.
Rajesh Kumar, Inspector, CBI/ACB, Delhi conducted
searches at your residence in presence of independent witness
Sh. Raj Kumar (PW5) and search-cum-observation memo Ex.
PW1/A was prepared. What have you to say?
Ans. It is incorrect. The search was conducted at the
house of my father. I was not residing with my father and I
was not present at the time of search.
Qus. 6 It is further in evidence against you that you deposited
the salary amount in your saving bank account No. 17012 in
Bank of Baroda, Chanakya Puri Branch and you made last
withdrawal from this account in June, 1991 leaving the
balance of Rs.119.30p and statement of account is Mark-A.
What have you to say?
Ans. It is a matter of record.
Qus. 7 It is further in evidence against you that you received
Rs. 1,05,172/- as salsry for the period June, 1993 to
August,1995 from the Transport Department and the salary
statements are Ex. PW7/C-1 to C-3 which were sent to CBI
by PW-7 Ms. Rashmi Singh vide letter Ex.PW7/A alongwith
Ex. PW7/B which is statement 1 to 6 signed by you. What
have you to say?

CRL.A.285/2007 Page 55 of 75





Ans. It is a matter of record. However Ex. PW7/B
was got filled during investigation at the direction of CBI.
Qus. 8 It is further in evidence against you that you also
received an amount of Rs. 1773/- as interest in saving bank
account No. 19747 in PNB, Kishan Ganj, Delhi. What have
you to say?
Ans. It is a matter of record.
Qus. 9 It is further in evidence against you that during
the check period i.e. June, 1993 to August, 1995 your
expenditure was Rs. 34707/-. What have you to say?
Ans. It is incorrect.
Qus. 10 It is further in evidence against you that during
the check period, you deposited Rs. 80,000/- in account
No.Sugam 508, PNB, Kishan Ganj, Delhi and statement of
accounts are Ex. PW3/A and B and out of this account FDRs
of Rs. 50,000/- and Rs. 30,000/- were issued which have been
taken back by you with the orders of the Court. What have
you to say?
Ans. It is a matter of record.
Qus. 11 It is further in evidence against you that on
22.8.95 an amount of Rs.23,837/- was found as cash balance
in your account No. 19747, PNB, Kishan Ganj, Delhi. What
have you to say?
Ans. It is a matter of record.
Qus. 12 It is further in evidence against you that during
the check period, you acquired moveable assets worth Rs.
4250/- as per observation memo. What have you to say?
Ans. It is incorrect. Observation memos contained all
wrong details.
Qus. 13 It is further in evidence against you that during
the check period, you were found in disproportionate assets to
the tune of Rs. 35849/- for which you have not satisfactorily
account for. What have you to say?

CRL.A.285/2007 Page 56 of 75





Ans. It is incorrect. I have fully explained to CBI.
Qus. 14 It is further in evidence against you that PW-4
Sh. Virender Singh has accorded sanction for your
prosecution vide sanction order Ex. PW4/A bearing his
signature at point-A. What have you to say?
Ans. I have no knowledge.
Qus. 15 Why this case against you?
Ans. I have been falsely implicated in this case.
Qus. 16 Why have the PWs deposed against you?
Ans. No public witness has deposed against me. Rest
were police officials.
Qus. 17 Will you lead any defence evidence?
Ans. Yes.
Qus. Have you to say anything else?
Ans. I have been falsely implicated in the instant case
by CBI without investigating the case. There is no
disproportionate assets. My kitchen expenses used to be borne
by my father out of the agricultural income. I have not spent
any money on kitchen expenses during the check period. I
used to receive financial assistance from my ‘Nani’. I am
innocent.”

41. In the instant case, the appellant was asked questions regarding his
employment, salary, balance and interest in saving bank accounts (in PNB
and Bank of Baroda), his FDRs, moveable assets and expenditure, pertaining
to the period 17.07.1989 to August, 1995. The appellant was asked to
explain the disproportionate assets amounting to Rs. 35,849/-. It is therefore,

CRL.A.285/2007 Page 57 of 75





observed that the appellant was in fact asked to explain the circumstance of
him possessing assets disproportionate to his known source of income during
a definite period from 17.7.1989 to August, 1995. Further, it is observed that
all evidence brought on record by the prosecution viz the proof of
employment during the said check period (Ex PW6/A), the complaint (Ex.
PW1/B); the subject FIR (Ex. PW1/C); the search-cum-observation memo
(Ex. PW1/A); statement of saving bank account No. 17012 in Bank of
Baroda, Chanakya Puri Branch (Mark A); Salary statement during
employment with the Transport Department (Ex. PW7/C-1 to C-3);
expenditure of the appellant during the check period; FDR deposits in PNB,
Kishan Ganj; Cash balance in account No. 19747 in PNB, Kishan Ganj;
moveable assets; were all put to the appellant, in order to enable him to
explain any incriminating circumstances that may appear from the evidence
led against him. The appellant was also specifically asked to explain his
income during the check period of 1989-August 1995, which included the
period when he was unemployed. Thus, the appellant was asked to explain
all incriminating circumstances that were brought forward by the prosecution
to prove its case against the appellant. The appellant before this Court has

CRL.A.285/2007 Page 58 of 75





failed to prove or substantiate any prejudice and has only highlighted the
alleged omission of inclusion of all incriminating circumstances against him.
42. It is further observed that the appellant himself led evidence by
examining DW2 Sh. Anand Singh, Sub Post Master, Padam Nagar, P.O.
Delhi to establish his RD Account and the fact that he had deposited an
amount of Rs. 1,20,000/- during the check period. Further, after perusing the
defence evidence led by the appellant, specifically the statement of DW2, it
comes to light that the appellant was having a RD Account Number 418867
which was opened on 3.11.89 and was closed on 8.11.94. The maturity value
of this account was Rs. 1,60,060/-. The Learned Special Judge in the
impugned judgment has observed as under:
“The accused has examined DW-2 Sh. Anand Singh, Sub Post
Master, Padam Nagar, P.O. Delhi, who stated that the accused
had a RD Account No. 418867, which was opned on 3.11.1989
and closed on 8.11.1994 and the maturity value of Rs. 1,60,060/-
was paid to accused on 8.11.1994 and he proved certificate Ex.
DW2/A. During the course of argument, the accused as well as
his defence counsel Sh. M.P. Singh submitted that the accused
deposited Rs. 2000/- p.m. from 3.11.1989 to 8.11.1999 in the
said RD account. So, the accused had deposited Rs. 1,20,000/-
during these five years from 3.11.1989 to 8.11.1999 @ Rs.
2000/- p.m. The accused while working as a public servant from
November, 1989 till February, 1991 and June 1993 to November
1995 he must have deposited Rs. 66000/- during these 33 months
@ Rs. 2000/- p.m. and he deposited Rs. 54,000/- during 27
months from 27.2.1991 to 4.6.1993 when he was without job @
Rs. 2000/- p.m.”


CRL.A.285/2007 Page 59 of 75





43. The assertion made on behalf of the appellant that the Ld. Special
Judge did not provide the appellant any opportunity to explain the extra
income of Rs. 1,20,000/- does not hold water in view of the circumstance
that the appellant himself led evidence to prove that he maintained the RD
Account No. 418867 which was opened on 3.11.89 and was closed on
8.11.94 and deposited a sum of Rs. 1,20,000/- in the said account.

44. In view of the foregoing issue no. 3 is decided against the appellant.

Issue No.4: Whether the appellant was able to satisfactorily account for
the assets found disproportionate to his known sources of income?
45. The appellant, in the instant case was charged for the offence under
section 13(1)(e) read with section 13(2) of the PC Act. Section 13(1)(e) of
the PC Act reads as under:
“ 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

CRL.A.285/2007 Page 60 of 75

46. With respect to the essentials to be proved to convict a person for
possessing disproportionate assets under the afore-stated provision under
section 13(1)(e) of the PC Act, the Hon’ble Supreme Court in V.K. Puri vs.
CBI , reported as (2007) 6 SCC 21 , held as under:
“ 13. Ingredients of the offence under Section 13(1)( e ) of the
1988 Act are:
( i ) the accused is a public servant;
( ii ) the nature and extent of the pecuniary resources of property
found in his possession;
( iii ) his known sources of income i.e. known to the prosecution;
( iv ) such resources or properties found in possession of the
accused were disproportionate to his known sources of income.”

47. In the cases involving allegations of possession of disproportionate
assets, the law regarding the burden of proof is well settled. Initially, the
prosecution has to discharge the burden to establish the culpability of the
accused by leading positive evidence, to establish the essential ingredients of
the offence of criminal misconduct. Thereafter, the burden of proof shifts to
the accused to account for the possession of the disproportionate assets. In
this regard, the Supreme Court in State of Maharashtra vs. Pollonji

CRL.A.285/2007 Page 61 of 75





Darabshaw Daruwalla, reported as 1987 (Supp) SCC 379 , has held as
under:
“18. The assumptions implicit in the above observation of the
High Court suffer from a basic fallacy. It is for the
prosecution to choose what, according to it, is the period
which having regard to the acquisitive activities of the public
servant in amassing wealth, characterize and isolate that
period for special scrutiny. It is always open to the public
servant to satisfactorily account for the apparently
disproportionate nature of his possession. Once the
prosecution establishes the essential ingredients of the offence
of criminal misconduct by proving, by the standard of
criminal evidence, that the public servant is, or was at any
time during the period of his offence, is in possession of
pecuniary resources or property disproportionate to his
sources of income known to the prosecution, the prosecution
discharges its burden of proof and the burden of proof is lifted
from the shoulders of the prosecution and descends upon the
shoulders of the defence. It then becomes necessary for the
public servant to satisfactorily account for the possession of
such properties and pecuniary resources. It then becomes
necessary for the possession of such properties and pecuniary
resources. It is erroneous to predicate that the prosecution
should also disprove the existence of the possible sources of
income of the public servant. Indeed in State of
Maharashtra v. Wasudeo Ramchandra [(1981) 3 SCC 199 :
1981 SCC (Cri) 690 : AIR 1981 SC 1186] this Court
characterised the approach of that kind made by the High
Court as erroneous. It was observed: [SCC p. 204, SCC (Cri)
p. 695, para 12]
“The High Court, therefore, was in error in holding that a
public servant charged for having disproportionate assets in
his possession for which he cannot satisfactorily account,
cannot 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.”
In the present case, the selection of a ten year period between
April 1, 1958 and 31-12-1968 cannot, by reason alone of the

CRL.A.285/2007 Page 62 of 75

possession of assets disproportionate to his known sources of income to the
extent of Rs. 35,849/- while he was working as a public servant with the
NIDC and Transport Department during the check period of 1989-1995 and
that the known sources of income of the appellant were his salary from
NIDC during 1989-1991 and his salary from the transport department along
with the interest accrued on his saving bank accounts. As per the settled legal
position, the burden of proof then shifted to the appellant to disprove this

CRL.A.285/2007 Page 63 of 75





charge and to prove that the said amount of Rs. 35,849/- was not
disproportionate to his known sources of income.
50. It has been further settled that the onus is on the accused to prove that
the assets found were not disproportionate to the known sources of income.
While giving context to the term ‘known sources of income’ in cases
involving allegations of possession of disproportionate assets the Supreme
Court in CSD Swami vs. State reported as (1960) 1 SCR 461 held as under:
“6…Now, the expression “known sources of income” must
have reference 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 affairs of an accused
person. Those will be matters “specially within the
knowledge” of the accused, within the meaning of Section
106 of the Evidence Act. The prosecution can only lead
evidence, as it has done in the instant 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 justified 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-of-pocket expenses incidental to journeys performed by
him for his official tours. That could not possibly be alleged
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 government 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 after his retirement, unless he had a
justification for borrowing from his provident fund. We are

CRL.A.285/2007 Page 64 of 75

51. Similarly, in Hindustan Petroleum Corpn. Ltd. v. Sarvesh Berry ,
reported as (2005) 10 SCC 471, the Supreme Court held as under:
“13. It is to be noted that in cases involving Section 13(1)( e )
of the PC Act, the onus is on the accused to prove that the
assets found were not disproportionate to the known sources
of income. The expression “known sources of income” is
related to the sources known to the authorities and not the
accused. The Explanation to Section 13(1) of the PC Act
provides that for the purposes of the section, “known sources
of income” means income derived 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. How the assets were acquired
and from what source of income is within the special
knowledge of the accused. Therefore, there is no question of
any disclosure of defence in the departmental proceedings. In
the criminal case, the accused has to prove the source of

CRL.A.285/2007 Page 65 of 75

52. While defending the charge of possession of disproportionate assets
amounting to Rs. 35,849/-, the appellant, himself led evidence to the effect
that he had deposited a sum of Rs. 1,20,000/- during the check period 1989-
1993. It is a well settled proposition of law, commencing from the decision
of the Hon’ble Supreme Court in State of Bombay vs. Kathi Kalu Oghad
reported as (1962) 3 SCR 10 , that the protection from self incrimination
under Article 20(3) of the Constitution of India, does not extend to an
accused who produces documents/material against himself in absence of any
duress or coercion. It is further a settled legal position that even the
statement of the accused under section 313 of the Code can be used as
evidence against him, insofar as it supports the case of the prosecution. Thus,
where the evidence produced by the appellant is in line with the case of the
prosecution, it can be used against him for rendering conviction. (Ref:
Brajendra Singh vs. State of M.P. reported as (2012) 4 SCC 289 ).
53. Therefore that left the appellant to prove with cogent evidence that the
amount of Rs. 2000/- deposited every month from 3.11.1989 to 8.11.1994,
which period also included the period when he remained unemployed,

CRL.A.285/2007 Page 66 of 75





formed part of his known sources of income. However, it is observed that
except for the bald assertion in his statement under section 313 of the Code
that the appellant was doing a private job and was imparting tuitions, no
evidence has been brought on record by the appellant to substantiate this
assertion. The appellant did not furnish any evidence to show that he was
working anywhere from 27.02.1991-04.06.1993. This fact was in his
exclusive knowledge, within the meaning of the provisions of section 106 of
the Evidence Act, thus, it was to be established by him. Therefore, the
burden of proof in this regard was not satisfactorily discharged by the
appellant with positive evidence in support of his defence, and thus the Ld.
Special Judge was correct in drawing a presumption under section 114 of the
Evidence Act against the appellant while holding as under:

“ 36. In the present case, the prosecution has established that
the accused had earned income of Rs. 1,53,922/- as public
servant and Rs. 2066/- as interest and after deducting one
third living expenses of Rs. 51,307/- savings should have been
Rs. 1,04,685/- but against it, the accused was found to possess
moveable assets worth Rs. 2,23,917/- which was in excess by
1,19,232/-. Now u/s 13(1)(e) and explanation attached thereto
and as per judgment of the Hon’ble Supreme Court in Avadh
Kishore Gupta and Pollonji Case (Supra), the burden shifted
upon the accused to explain his source of income as how he
was in excess of assets/savings by Rs. 1,19,232/-. The accused
has merely stated in his statement u/s 313 CrPC while
replying question No. 3 that he was without job from
27.2.1991 to 4.6.1993 to which he replied that he was in

CRL.A.285/2007 Page 67 of 75





private job and also imparting tuitions. The accused did not
come in the defence to depose about his income. His father
DW-1 also did not say that accused had any other source of
income. He had also not examined any witness to prove his
income. The accused did not lead evidence as to from what
source of income, he was depositing Rs. 2000/- p.m. in RD
Account. The accused did not lead any evidence to the effect
that he was also working somewhere from 27.2.1991 to
4.6.1993 and this fact was specially within the knowledge of
the accused within the meaning of Section 106 of Indian
Evidence Act 1872 and as such an adverse inference is to be
drawn against the accused u/s 114 of the Indian Evidence Act.
In the circumstances it has to be presumed that the accused
was depositing his ill-gotten money at the rate of Rs. 2000/-
per month from November, 1989 to February, 1991 and June,
1993 to November, 1994 while he was working as a public
servant and also during the period when he remained
unemployed at the rate of Rs. 2000/- per month in the said
recurring deposit account with the post office. As such it has
to be held that the accused who was working as a public
servant has committed the offence of criminal misconduct as
he was in possession of the moveable property of Rs.
1,19,232/- disproportionate to his known source of income to
which the accused could not satisfactorily account. Hence, he
is held guilty for the offence punishable u/s 13(1)(e) of
Prevention of Corruption Act, 1988.”

54. In view of the foregoing, since the appellant has failed to explain his
being in possession of assets disproportionate to his known sources of
income, I see no reason to differ from the findings arrived at by the Ld.
Special Judge.
55. It is observed that the following is proved beyond reasonable doubt in
the instant case:

CRL.A.285/2007 Page 68 of 75





Income during the Check Period
Income from employment at
NIDC (17.07.1989-27.02.1991) Rs. 48,750/-
Income from Transport
Dept (04.06.1993-August, 1995) Rs. 1,05,172/-
Total salary Rs. 1,53,922/-
Interest Rs. 2066/-
Total Income Rs. 1,55,988/-
Assets during check period
Two FDRs in PNB Rs. 80,000/-
Balance in PNB A/c Rs. 23,917/-
Principal Deposit in RD A/c Rs. 1,20,000/-
Total Assets Rs. 2,23,917/-
Kitchen/Living Expenses Rs. 51,307/-
Disproportionate Assets 1,19,236/-
56. Thus, during the check period between 1989 to 21.08.1995 the
appellant’s known income has been established to be Rs. 1,53,922/- as public
rd
servant and Rs. 2066/- as interest and after deducting 1/3 living expenses of
Rs. 51,307/-, the savings of the appellant should have been Rs.1,04,681/-.
However, the appellant was found in possession of moveable assets worth
Rs. 2,23,917/-. Therefore, the appellant was found in possession of assets

CRL.A.285/2007 Page 69 of 75





disproportionate to his known sources of income to the tune of Rs. 1,19,236/-
and the appellant has failed to account for the said disproportionate income.
57. In view of the foregoing, issue no. 4 is also decided against the
appellant.
58. Keeping in view the foregoing discussion, I am of the view that the
appellant has not been able to satisfactorily account for possessing assets
disproportionate to his known sources of income. I find no reason to differ
with the findings of the Ld. Special Judge with respect to the conviction of
the appellant under section 13(1)(e) of the Prevention of Corruption Act.
On Sentence:
59. The provisions under section 27 of the PC Act stipulate that the High
Court, while adjudicating an appeal assailing the order of a Court of the
Special Judge under the PC Act, may exercise all powers of appeal conferred
by the Code on the High Court, as if the court of the Special Judge were a
Court of Session trying cases within the local limits of the High Court. The
provisions under Section 27 of the PC Act are reproduced hereinbelow:
“ 27. Appeal and revision.—Subject to the provisions of this Act, the High
Court may exercise, so far as they may be applicable, all the powers of
appeal and revision conferred by the Code of Criminal Procedure, 1973 (2
of 1974) on a High Court as if the court of the special Judge were a Court of
Session trying cases within the local limits of the High Court.”


CRL.A.285/2007 Page 70 of 75





60. This Court while exercising its powers under section 386 of the Code,
has on earlier occasions modified the sentence imposed on the accused
persons under the PC Act. [ Ref: Rekha Sharma v. CBI (supra), Sri Sharma
v. State reported as (2008) 102 DRJ 274. ] The High Courts have been
vested , with the power, inter alia, to alter the extent of the sentence in an
appeal from conviction. The statutory provisions under section 386 of the
Code are reproduced hereinbelow:
“386. After perusing such record and hearing the appellant or his
pleader, if he appears, and the Public Prosecutor, if he appears,
and in case of an appeal under section 377 or section 378, the
accused, if he appears, the Appellate Court may, if it considers
that there is no sufficient ground for interfering, dismiss the
appeal, or may-

(b) In an appeal from a conviction-

(iii) With or without altering the finding, alter the nature or the
extent, or the nature and extent, of the sentence, but not so as to
enhance the same;
”

61. This court, in its decision in Rekha Sharma (supra) , while dealing
with the question of modification of sentence awarded to the appellants
convicted under the PC act therein, made the following observations:
“ 488. The Supreme Court in its decision reported as (2013) 11
SCC 401, Jasvir Kaur v. State of Punjab expressed concern on
the absence of a sentencing policy in the country and, therefore

CRL.A.285/2007 Page 71 of 75





cautioned the Courts to callibrate the punishment with due care
and upon taking into account the relevant attending
circumstances. The Supreme Court quoted with approval the
luminous observations of English Judge Henry Alfred McCardie
which are reproduced hitherto-fore:
“…Trying a man is easy, as easy as falling off a log, compared
with deciding what to do with him when he has been found
guilty.”

495. I am conscious of the fact that these appellants (A-6 to A-
62) were under immense pressure to commit these crimes. The
investigating officer has deposed regarding the same and the trial
Judge has also mentioned his observations in this regard. I am in
agreement with the same. However, I disagree with his
observations with regard to appellants A-32, A-37, A-38, A-39,
A-40 and A-41. Barring A-37, Pushkar Mal Verma they have not
pleaded that they were under pressure owing to the fact that their
defense was that they have not abetted in creating the second set
of lists. This defense has been proven to be false but I am of the
opinion that they cannot be penalized for taking a false defense
as regards sentencing. The false defense has been used as an
additional circumstance to prove their guilt, however, I feel they
were similarly situated as the remaining teachers in the
preparation of these lists.
496. L.N Rangarajan in his book “ Kautilya-The Arthashastra ”
has indicated the obligations which are placed upon a Ruler. It
would be apt to quote what stands reproduced in Part VIII Law
and Justice (Penguin Edition, first published in the year 1992)
“It is the power of punishment alone, when exercised impartially
in proportion to the guilt, and irrespective of whether the person
punished is the King's son or an enemy, that protects this world
and the next.”

(Emphasis supplied.)


CRL.A.285/2007 Page 72 of 75





62. In view of the facts and circumstances of the instant case and the
foregoing discussion on the abovementioned issue numbers 1-4, in my view,
it would have served the ends of justice in the present case, to have
sentenced the appellant to the minimum punishment prescribed under section
13(2) of the PC Act for having committed the offence under section 13(1)(e)
of the PC Act.

63. At this juncture, it would be relevant to note that the provisions under
section 13(2) of the PC Act, stood amended vide the Lokpal and Lokayuktas
Act, 2013 (Schedule, Part III, Clause 2) which came into force with effect
from 16.01.2014. Vide the said amendment, inter alia, the minimum
sentence of imprisonment stipulated under section 13(2) of the PC Act is a
term of four years. The said provision, as it stood prior to the amendment
which was enforced with effect from 16.01.2014, prescribed a minimum
sentence of imprisonment for a term of one year for the offence committed
under section 13(1)(e) of the PC Act. Section 13(2) of the PC Act, as it
stood prior to the amendment enforced with effect from 16.01.2014, is
reproduced hereinbelow:
“13(2). Any public servant who commits criminal misconduct
shall be punishable with imprisonment for a term which shall be
not less than one year but which may extend to seven years and
shall also be liable to fine.”

CRL.A.285/2007 Page 73 of 75






64. It is a rule of ancient English vintage that there can be no ex post facto
infliction of a penalty heavier than what had prevailed at the time of
commission of the offence. ( Ref: Maru Ram v. Union of India: (1981) 1
SCC 107 ) This well-established principle of law, would find application in
the present case in keeping with Article 20(1) of the Constitution of India
which interdicts subjecting any person to a penalty greater than that which
might have been inflicted under the law in force at the time of the
commission of the offence. At the time of the commission of the offence in
the present case, i.e. the check period from 1989-1995, the provisions under
the PC Act as it stood prior to the amendment in 2014, prescribed a
minimum sentence of imprisonment for a term of one year.
65. In my view, in keeping with the foregoing discussion, whilst
upholding the conviction of the appellant, the sentence awarded by the trial
court ought to be modified. I, therefore, sentence the appellant to rigorous
imprisonment for a period of one year under section 13(2) of the PC Act for
the offence punishable under section 13(1)(e) of the PC Act.
66. Accordingly, the appeal stands dismissed. The conviction of the
appellant is upheld. The sentence imposed is modified as above. The bail

CRL.A.285/2007 Page 74 of 75





bond stands cancelled, surety discharged accordingly. The appellant shall
surrender forthwith to undergo the remaining portion of his sentence.
67. A copy of this judgment be sent to the Superintendent, Central Jail,
Tihar by Express Messenger for necessary information and compliance.
68. The trial court record be sent back.


SIDDHARTH MRIDUL, J
SEPTEMBER 30, 2016
dn/rr

CRL.A.285/2007 Page 75 of 75