Full Judgment Text
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CASE NO.:
Appeal (crl.) 1997 2000
PETITIONER:
STATE BY CENTRAL BUREAU OF INVESTIGATION
Vs.
RESPONDENT:
SHRI S. BANGARAPPA
DATE OF JUDGMENT: 20/11/2000
BENCH:
R.P.Sethi, K.T.Thomas
JUDGMENT:
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J U D G M E N T
THOMAS, J. Leave granted. A case has been
charge-sheeted by the Central Bureau of Investigation (CBI)
against S. Bangarappa, one time Chief Minister of Karnataka
State, alleging that he had amassed wealth grossly
disproportionate to his known sources of income during a
check period when he held public offices either as Minister
or Chief Minister. The offence under Section 13(2) of the
Prevention of Corruption Act, 1988, (for short the Act)
was pitted against him, read with Section 13(1)(e) thereof
on the ground that he was in possession of pecuniary
resources and assets so disproportionate that he could not
satisfactorily account for them. When respondent (S.
Bangarappa) moved the High Court of Karnataka for quashing
the said criminal proceedings, a single judge of the High
Court, as per the order impugned in this case, quashed the
same. This appeal, by special leave, is at the instance of
the CBI in challenge of the said order.
The check period is nearly a decade (between 9.8.1988
and 31.10.1997) during which the respondent held public
offices either as MLA or as a Minister in the State cabinet
or as Chief Minister of the State or as a Member of
Parliament. According to the CBI the total income which
respondent had from all his known sources of income, during
the aforesaid period, was around 30 lakhs and after
deducting his expenses (which were worked out approximately
to be 22 lakhs) he could not have made a saving of more than
7 lakhs of rupees. But the CBI found that during the said
period the respondent had acquired assets worth more than
Rs.1,16,00,000/- (one crore sixteen lakhs) for which he had
no explanation whatsoever.
When respondent was brought before the trial court he
pleaded for a discharge from the prosecution for which he
raised various contentions. The special judge heard
arguments at that stage for a long time spreading over to a
number of days. He then passed a very detailed order
(running into 57 closely typed pages) just for holding that
there is a prima facie case against the accused person to
frame charge under Section 13 read with Section 13(1)(e) of
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the Act and to proceed with the trial.
Respondent then moved the High Court under Section 482
of the Code of Criminal Procedure (for short the Code)
challenging the aforesaid order. Three contentions were
mainly raised by him before the High Court. First was that
the investigation was not conducted in the manner specified
under Section 17 of the Act. Second was that the court
which ordered to frame the charge had no jurisdiction to try
the case because no notification had been issued under
Section 4 of the Act. Third was that on the merits it is
not safe to rely on the statements alleged to have been made
by some of the witnesses.
Learned single judge of the High Court upheld all the
above three contentions raised by the respondent and
consequently the proceedings taken against him were quashed
in full measure.
Shri Harish Salve, learned Solicitor General of India,
contended that the High Court has grossly erred on all the
three points and there was absolutely no necessity for the
High Court to have interfered with the case at that
preliminary stage. When the trial court has chosen to
decide that the accused had to be tried for the offence, he
could not understand the wisdom of the High Court in making
a meticulous scrutiny of the evidence proposed to be adduced
by the prosecution and to scuttle further proceedings of the
trial without waiting for the trial to reach its normal
culmination. Shri Kapil Sibal, learned senior counsel, who
argued for the respondent, has fairly conceded that he could
not validly countermand the contentions of the learned
Solicitor General of India in respect of the first and
second points referred to above, but he made a bid to
sustain the order on the ground that there was no sufficient
materials to frame the charge.
Learned single judge reminded himself that public men
should have crystal clear and transparent personality and
that Caesars wife must be above suspicion. He made a
close scrutiny of the materials and felt that there is no
option except to quash the proceedings against the
respondent. However, learned single judge made the
following general observations:
No doubt corruption affects the normal fabric of the
society. The citizens loose their faith in the political
leaders who shout that they are for the people. No doubt
many people go unpunished although corruption causes
considerable damage to the economy of the nation. The roots
of corruption are so deep that it is an uphill task to
eradicate them. It is only possible if and only if each
citizen in our country follows the philosophy of
contentment. To quench the thirst of greed and lust one
must be drenched in shower of honesty and the fountain of
sublime love should sprinkle the magical drops on the eyes
of everyone who has shut his eyes for the reality of the
life. Unless one tries to find a golden key to open the
gates of wisdom, the heavenly life remains as a myth and we
are all making the futile effort to attain divinity in our
life. The public man should have crystal clear and
transparent personality. Caesars wife must be above
suspicion.
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Having been reminded himself of all such sublime
thoughts on how to eradicate the evil of corruption it would
have been appropriate for the High Court to direct the
respondent to participate in the trial to reach its logical
terminus by affording him the opportunity to explain or
account for the excess wealth projected by the investigating
agency. But learned single judge, instead of choosing that
line, has chosen to scuttle the proceedings at the beginning
stage of the trial itself for which he had even upheld the
contention that the investigation was illegally conducted.
For arriving at such a finding learned single judge
unfortunately bypassed the factual position that the
investigation was conducted by the CBI and not the regular
police of the State. It appears to us that learned single
judge assumed that investigation under Section 17 of the Act
could be conducted only by an officer not below the rank of
Deputy Superintendent of Police whichever be the
investigating agency. The reasoning of the learned single
judge on that score is this:
One can understand, if there is no mandatory
provision, it is left to the discretion of the
Superintendent of Police to assign his work provided the
statute permits. But to investigate, Section 17 of the Act
is mandatory in nature. No officer below the rank of Deputy
Superintendent of Police shall investigate the case. In
case if he has not carried on the investigation, there must
be some order authorising the other person to go on with the
investigation in the case on hand. This is the patent
lacuna.
The above is the result of a wrong understanding of
the scope of Section 17 of the Act. If the investigation is
to be conducted by the CBI the legislative insistence for
the rank of the officer to be not below that of Deputy
Superintendent of Police is given exception to. This can be
discerned even by a reading of the Section in its entirety.
We, therefore, extract Section 17 hereunder:
17. Persons authorised to investigate. -
Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), no police officer below the
rank,- (a) in the case of the Delhi Special Police
establishment, of an Inspector of Police; (b) in the
metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad
and in any other metropolitan area notified as such under
sub-section (1) of section 8 of the Code of Criminal
Procedure, 1973 (2 of 1974), of an Assistant Commissioner of
Police; (c) Elsewhere, of a Deputy Superintendent of Police
or a police officer of equivalent rank, Shall investigate
any offence punishable under this Act without the order of a
Metropolitan Magistrate or a Magistrate of the first class,
as the case may be, or make any arrest therefore without a
warrant: Provided that if a police officer not below the
rank of an Inspector of Police is authoised by the State
Government in this behalf by general or special order, he
may also investigate any such offence without the order of a
Metropolitan Magistrate or a Magistrate of the first class,
as the case may be, or make arrest therefore without a
warrant: Provided further that an offence referred to in
clause (e) of sub-section (1) of section 13 shall not be
investigated without the order of a police officer not below
the rank of a Superintendent of Police.
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There is no dispute that CBI is a Delhi Special Police
Establishment. The Superintendent of CBI, Bangalore has
issued the following order on 21.10.1997:
Under the provision of Section 17 of P.C. Act, 1988,
Sh. B. Pannir Salvem, Inspector of Police Establishment
Division, Bangalore is hereby authorised to investigate the
said case against Sh. S. Bangarappa, Member of Parliament
and Former Chief Minister of Karnataka for the offences
under Section 13(2) read with 13(1)(e) of Prevention of
Corruption Act, 1988.
When there is such an order, any inspector of police
attached to the CBI can conduct the investigation. Learned
single judge unnecessarily quoted extracts from the decision
of this Court in State of Haryana & ors. vs. Bhajan Lal &
ors. {1992 Supple.(1) SCC 335} perhaps being misled in
believing that even when the investigation was conducted by
CBI the requirement contained in clause (c) of Section 17 of
the Act has to be followed. The word elsewhere in that
clause is clear indication that the insistence for Deputy
Superintendent of Police can have application only if it
does not fall under clauses (a) and (b). We do not wish to
delve more into this aspect as Shri Kapil Sibal, learned
senior counsel for the respondent, has fairly conceded that
the High Court has gone wrong on that aspect.
Learned single judge thereafter proceeded to consider
the contention that the court concerned had no jurisdiction
to try the case. While upholding the said contention he has
stated thus:
There is no notification in this case that the XXI
City Civil and Sessions Judge was empowered to try this
case. Mr. Tharanath, learned counsel for respondent relied
upon the decision popularly known as Jayalalithas case
reported in 1999 AIR SCW 1579. The points involved in that
case are entirely different from the facts of this case.
The very question of appointing the Special Judge was
challenged to try all cases against her. The Honble
Supreme Court has held that there is nothing wrong for the
appointment of Special Judge to try all the cases as the
speedy disposal is one of the criteria. Hence, in my
opinion, by close scrutiny of the judgment cited by the
learned counsel for CBI is not applicable unless there is
notification if any, to try such case. Otherwise, it will
be a trial without jurisdiction. In view of these facts and
circumstances, I feel that there is some force in the
submission of the learned counsel for the petitioner.
We strongly feel that learned single judge has chosen
to uphold the contention in a very casual manner without
taking into account the fall-out of such a finding on other
cases pending in that court. Section 4(1) of the Act says
that Notwithstanding anything contained in the Code of
Criminal Procedure, 1973, or in any other law for the time
being in force, the offences specified in sub-section (1) of
Section 3 shall be tried by special judges only.
Sub-section (2) enjoins on the special judge concerned to
try every offence specified in Section 3(1) of the Act.
Power is conferred on the Central Government as well as the
State Government to appoint special judges. Such conferment
can be discerned from Section 3(1) of the Act which reads
thus:
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The Central Government or the State Government may,
by notification in the Official Gazette, appoint as many
special judges as may be necessary for such area or areas or
for such case or group of cases as may be specified in the
notification to try the following offences, namely:- (a) any
offence punishable under this Act; and (b) any conspiracy
to commit or any attempt to commit or any abetment of any of
the offences specified in clause (a).
On 13.6.1990, the State Government of Karnataka had
issued a notification which is extracted below:
In exercise of the powers conferred by sub- section
(1) of Section 3 of the Prevention of Corruption Act, 1988
(Central Act 49 of 1988) and in partial modification of
Notification No.HD 192 PCR 82 dated 15/16th February, 1982,
No.HD 110 PCR 82 dated 11th May, 1982 and all other
Notification issued on the subject, the Government of
Karnataka hereby appoints the Sessions Judge specified in
col. (2) of the table below as Special Judge for the areas
specified in the corresponding entries of Col. (3) thereof
for the cases instituted by the Delhi Special Police
Establishment in respect of the offences specified in the
said sub- section.
Sl. Name of the Area No. Judge and Designation
-------------------------------------------- 1. XXI Addl.
City Bangalore District Civil and Sessions (including the
area Judge. Comprising city of Bangalore declared as
Metropolitan area under the Code of Criminal Procedure,
1973) and the District of Bangalore Rural, Chittradurga,
Kilar and Tamkur.
Then why did the learned single judge countenance that
there was no notification empowering the XXI City Civil and
Sessions Judge to try such cases? We are greatly distressed
at the degree of superciliousness with which the contention
was dealt with by the learned single judge without even
checking up whether there was any such notification. That
apart, if the High Court found that XXI City Civil and
Sessions Judge, Bangalore is not empowered to try such
cases, how could that be a ground to quash the criminal
proceedings? At the worst that would be a ground to
transfer the case from that court to the court having
jurisdiction to try the offence, and if no court has been
empowered till then, the criminal proceedings can be kept in
abeyance till the Government issues a notification
conferring such power on any other court. Any way, since
the court which ordered framing of charge against the
respondent was legally empowered to try the offence alleged
against the respondent it is not necessary to keep the
criminal proceedings in abeyance so far as this case is
concerned. We may point out that on this aspect also Shri
Kapil Sibal, learned senior counsel did not dispute the
stand adopted by the Solicitor General of India.
Learned single judge then proceeded to discuss the
merits of the evidence in this case. He made detailed
reference to the materials placed by the prosecution for
supporting the charge. When it was contended by the
Solicitor General of India that such a detailed analysis at
this stage was unwarranted Shri Kapil Sibal pointed out that
even the trial court did the same thing for deciding whether
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the charge should be framed or not. It is true that the
trial court should have avoided discussing the materials in
such details when it has chosen to frame charge. This court
has stated in Kanti Bhadra Shah and anr. vs. State of West
Bengal {2000 (1) SCC 722} that when a trial court decides to
frame charge it is not necessary to record reasons thereof.
We extract the relevant observations from that decision.
If the trial court decides to frame a charge there is
no legal requirement that he should pass an order specifying
the reasons as to why he opts to do so. Framing of charge
itself is prima facie order that the trial judge has formed
the opinion, upon considering the police report and other
documents and after hearing both sides, that there is ground
for presuming that the accused has committed the offence
concerned. If there is no legal requirement that
the trial court should write an order showing the reasons
for framing a charge, there is no need to further burden the
already burdened trial courts with such extra work. The
time has reached to adopt all possible measures to expedite
the court procedures and to chalk out measures to avert all
roadblocks causing avoidable delays.
Learned single judge considered the statement of CW-36
(Annappa) and CW-37 (Puttappa) and a score of other
witnesses cited by the prosecution. High Court then entered
upon a finding that it is not safe to rely on the statement
of some of those witnesses. Learned single judge undertook
the said exercise on the ground that trial court also
discussed the prosecution case at length to reach the prima
facie finding that the sale deeds in the names of Annappa
and Puttappa are benami transactions. He reached the
finding that the trial court had gone wrong in accepting the
statements of the above witnesses.
Shri Harish Salve addressed arguments to show that the
purchases made by the respondent in the names of Annappa and
Puttappa are all benami transactions and all such properties
are actually the properties of the respondent. He referred
to other materials for supporting his contention. Shri
Kapil Sibal, on the other hand, made an endeavour to show
that those properties cannot be counted in the account of
the respondent.
Time and again this Court has pointed out that at the
stage of framing charge the court should not enter upon a
process of evaluating the evidence by deciding its worth or
credibility. The limited exercise during that stage is to
find out whether the materials offered by the prosecution to
be adduced as evidence are sufficient for the court to
proceed further. (vide State of M.P. vs. Dr. Krishna
Chandra Saksena, [1996 (11) SCC 439].
We have no doubt that the materials which prosecution
enumerated are sufficient to frame the charge for the
offence under Section 313(2) read with Section 13(1)(e) of
the Act.
No doubt the prosecution has to establish that the
pecuniary assets acquired by the public servant are
disproportionately larger than his known sources of income
and then it is for the public servant to account for such
excess. The offence becomes complete on the failure of the
public servant to account or explain such excess, [vide M.
Krishna Reddy vs. State Dy. Superintendent of Police,
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1992(4) SCC 45, P. Nallammal and anr. vs. State, 1999(6)
SCC 559]. It does not mean that the court could not frame
charge until the public servant fails to explain the excess
or surplus pointed out to be the wealth or assets of the
public servant concerned. This exercise can be completed
only in the trial.[ K.Veeraswami v. Union of India (1991
(3) SCC 655; State of Maharashtra vs. Iswar Piraji
Kalpatri 1996(1) SCC 542 In the latter decision the court
held thus: The opportunity which is to be afforded to the
delinquent officer under Sec.5(1)(e) of the Act
[corresponding to Sec.13(1)(e) of 1988 Act of] of
satisfactorily explaining about his assets and resources is
before the court when the trial commences, and not at an
earlier stage.
For the above reasons we set aside the impugned
judgment of the High Court. We direct the trial court to
proceed with the trial in accordance with law and to dispose
it of as expeditiously as possible.