Full Judgment Text
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CASE NO.:
Appeal (crl.) 292 of 1997
PETITIONER:
State of Madhya Pradesh.
RESPONDENT:
Awadh Kishore Gupta and Ors.
DATE OF JUDGMENT: 18/11/2003
BENCH:
DORAISWAMY RAJU & ARIJIT PASAYAT.
JUDGMENT:
J U D G M E N T
ARIJIT PASAYAT, J
The State of Madhya Pradesh questions legality of judgment
rendered by a learned Single Judge of the Madhya Pradesh High
Court, Gwalior Bench accepting the prayer made in terms of Section
482 of the Code of Criminal Procedure, 1973 (in short ’the Code’)
to quash the investigation and proceedings under Prevention of
Corruption Act, 1988 (in short the ’Act’) in a case (crime no.
116/94) registered by the Special Police Establishment, Lokayukt,
Gwalior. Seven petitioners, who are the respondents herein, had
filed the petition to quash the investigation and the proceedings
on the ground that while investigating into the alleged
acquisition of disproportionate assets by present respondent no. 1
Awadh Kishore Gupta (petitioner no.1 before the High Court and
described as accused hereinafter), the income of the other
respondents were not taken note of. Several documents were
annexed to the petition to contend that there was no undisclosed
income of and/or acquisition of assets disproportionate to the
known sources of income by the respondent No. 1 who at the
relevant time was working as Executive Engineer in the Public
Health Engineering Department of the Government of Madhya Pradesh.
Before the High Court his wife was the petitioner no. 2; and his
sons and daughter were petitioner nos. 3 to 6 respectively and
petitioner no.7 was his father. It was their basic stand that the
proceedings were continuing without grant of proper opportunity to
them to explain their income and there was non-compliance with the
requirements of the Act. The basic allegation against the accused
was that he had acquired property beyond his known source of
income thereby rendering him punishable under Section 13(1)(e) of
the Act.
Stand of the appellant State who was respondent before the
High Court was that the matter was still under investigation and
the investigating agency was examining the articles seized and the
assets claimed by the accused and his relatives. As the matter
was still under examination by the investigating agency, no case
for quashing the investigation/ further proceedings was made out.
The High Court came to hold that the documents annexed to the
petition, more particularly, the income-tax returns indicate that
all the properties shown in the returns were fully explained to
have been acquired from the known sources of income of the accused
and his relatives and nothing has been found to have been acquired
disproportionately to the income of accused. Properties acquired
by his relatives could not have been taken for constituting the
offence so far as accused is concerned. Reference was also made to
a Will executed by accused’s mother and it was concluded that
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there was nothing to show that the Will had taints of benami. It
was held that the onus to prove a transaction as benami is on the
person who asserts and has to be discharged by adducing legal
evidence of a definite character. It was also held that the
requirements of Section 13(1)(e) clearly stipulated that an
opportunity has to be given, and a government servant cannot be
said to have failed to satisfactorily account the pecuniary
resources and properties disproportionate to his known sources of
income in the absence of such opportunity. Accordingly it was held
that nothing substantial had been collected though considerable
time had elapsed to collect evidence to suggest that if
prosecuted, the public servant would be liable to be convicted as
there has been little progress in the investigation. With these
observations, the investigation and further proceedings in the
case registered were quashed. Properties seized from the accused
were directed to be returned to him.
Learned counsel for the appellant submitted that the whole
approach of the High Court was erroneous. At the stage of
considering an application for quashing the investigation or
further proceedings, it is not permissible to proceed as if the
court was holding a trial and trying to sift evidence. The
parameter for exercise of jurisdiction under Section 482 of the
Code is very limited. Without keeping in view the parameters and
relying on documents and materials which were yet to be tested,
the High Court has quashed the investigation and the proceedings.
In response, learned counsel for the respondents submitted
that the investigation and further proceedings would have been an
exercise in futility. When the materials considered by the High
Court are taken into account, nothing more remains to be done and
without first granting an opportunity to explain, the
investigating agency could not have alleged commission of offence
punishable under Section 13(1)(e) of the Act. The judgment,
according to learned counsel, does not warrant interference.
Section 13 deals with various situations when a public
servant can be said to have committed criminal misconduct. Clause
(e) of sub-section (1) of the Section is pressed into service
against the accused. The same is applicable when the public
servant 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 pecuniary
resources or property disproportionate to his known sources of
income. Clause (e) of sub-section (1) of section 13 corresponds
to clause (e) of sub-section (1) of section 5 of the Prevention of
Corruption Act, 1947 (referred to as ’Old Act’). But there has
been drastical amendments. Under the new clause, the earlier
concept of "known sources of income" has undergone a radical
change. As per the explanation appended, the prosecution is
relieved of the burden of investigating into "source of income"
of an accused to a large extent, as it is stated in the
explanation that "known sources of income" mean income received
from any lawful source, the receipt of which has been intimated in
accordance with the provisions of any law, rules orders for the
time being applicable to a public servant. The expression "known
sources of income" has reference to sources known to the
prosecution after thorough investigation of the case. It is not,
and cannot 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 Indian
Evidence Act, 1872 (in short the ’Evidence Act’).
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The phrase "known sources of income" in section 13(1)(e)
{old section 5(1)(e)} has clearly the emphasis on the word
"income". It would be primary to observe that qua the public
servant, the income would be what is attached to his office or
post, commonly known as remuneration or salary. The term
"income" by itself, is elastic and has a wide connotation.
Whatever comes in or is received, is income. But, however, wide
the import and connotation of the term "income", it is incapable
of being understood as meaning receipt having no nexus to one’s
labour, or expertise, or property, or investment, and having
further a source which may or may not yield a regular revenue.
These essential characteristics are vital in understanding the
term "income". Therefore, it can be said that, though "income"
is receipt in the hand of its recipient, every receipt would not
partake into the character of income. Qua the public servant,
whatever return he gets of his service, will be the primary item
of his income. Other incomes which can conceivably are income qua
the public servant, will be in the regular receipt from (a) his
property, or (b) his investment. A receipt from windfall, or
gains of graft, crime, or immoral secretions by persons prima
facie would not be receipt from the "known sources of income" of
a public servant.
The legislature has advisedly used the expression
"satisfactorily account". The emphasis must be on the word
"satisfactorily" and the legislature has, thus, deliberately cast
a burden on the accused not only to offer a plausible explanation
as to how he came by his large wealth, but also to satisfy the
Court that his explanation was worthy of acceptance.
Exercise of power under Section 482 of the Code in a case of
this nature is the exception and not the rule. The section does
not confer any new powers on the High Court. It only saves the
inherent power which the Court possessed before the enactment of
the Code. It envisages three circumstances under which the
inherent jurisdiction may be exercised, namely, (i) to give effect
to an order under the Code, (ii) to prevent abuse of the process
of court, and (iii) to otherwise secure the ends of justice. It
is neither possible nor desirable to lay down any inflexible rule
which would govern the exercise of inherent jurisdiction. No
legislative enactment dealing with procedure can provide for all
cases that may possibly arise. Courts, therefore, have inherent
powers apart from express provisions of law which are necessary
for proper discharge of functions and duties imposed upon them by
law. That is the doctrine which finds expression in the Section
which merely recognizes and preserves inherent powers of the High
Courts. All courts, whether civil or criminal possess, in the
absence of any express provision, as inherent in their
constitution, all such powers as are necessary to do the right and
to undo a wrong in course of administration of justice on the
principle quando lex aliquid alique concedit, conceditur et id
sine quo res ipsa esse non potest (when the law gives a person
anything it gives him that without which it cannot exist). While
exercising powers under the Section, the Court does not function
as a court of appeal or revision. Inherent jurisdiction under the
Section though wide has to be exercised sparingly, carefully and
with caution and only when such exercise is justified by the tests
specifically laid down in the Section itself. It is to be
exercised ex debito justitiae to do real and substantial justice
for the administration of which alone courts exist. Authority of
the court exists for advancement of justice and if any attempt is
made to abuse that authority so as to produce injustice, the court
has power to prevent such abuse. It would be an abuse of process
of the court to allow any action which would result in injustice
and prevent promotion of justice. In exercises of the powers
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court would be justified to quash any proceeding if it finds that
initiation/continuance of it amounts to abuse of the process of
court or quashing of these proceedings would otherwise serve the
ends of justice. When no offence is disclosed by the complaint,
the court may examine the question of fact. When a complaint is
sought to be quashed, it is permissible to look into the materials
to assess what the complainant has alleged and whether any offence
is made out even if the allegations are accepted in toto.
In R.P. Kapur v. State of Punjab (AIR 1960 SC 866), this
Court summarized some categories of cases where inherent power can
and should be exercised to quash the proceedings.
(i) where it manifestly appears that there is a legal bar
against the institution or continuance e.g. want of
sanction;
(ii) where the allegations in the first information report
or complaint taken at its face value and accepted in
their entirety do not constitute the offence alleged;
(iii)where the allegations constitute an offence, but there
is no legal evidence adduced or the evidence adduced
clearly or manifestly fails to prove the charge.
In dealing with the last case, it is important to bear in
mind the distinction between a case where there is no legal
evidence or where there is evidence which is clearly inconsistent
with the accusations made, and a case where there is legal
evidence which, on appreciation, may or may not support the
accusations. When exercising jurisdiction under Section 482 of
the Code, the High Court would not ordinarily embark upon an
enquiry whether the evidence in question is reliable or not or
whether on a reasonable appreciation of it accusation would not be
sustained. That is the function of the trial Judge. Judicial
process no doubt should not be an instrument of oppression, or,
needless harassment. Court should be circumspect and judicious in
exercising discretion and should take all relevant facts and
circumstances into consideration before issuing process, lest it
would be an instrument in the hands of a private complainant to
unleash vendetta to harass any person needlessly. At the same
time the Section is not an instrument handed over to an accused to
short-circuit a prosecution and bring about its sudden death. The
scope of exercise of power under Section 482 of the Code and the
categories of cases where the High Court may exercise its power
under it relating to cognizable offences to prevent abuse of
process of any court or otherwise to secure the ends of justice
were set out in some detail by this Court in State of Haryana v.
Bhajan Lal (1992 Supp (1) SCC 335) A note of caution was, however,
added that the power should be exercised sparingly and that too in
rarest of rare cases. The illustrative categories indicated by
this Court are as follows:
"(1) Where the allegations made in the first
information report or the complaint, even if they
are taken at their face value and accepted in
their entirety do not prima facie constitute any
offence or make out a case against the accused.
(2) Where the allegations in the first information
report and other materials, if any, accompanying
the FIR do not disclose a cognizable offence,
justifying an investigation by police officers
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under Section 156(1) of the Code except under an
order of a Magistrate within the purview of
Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the
F.I.R. or complaint and the evidence collected in
support of the same do not disclose the commission
of any offence and make out a case against the
accused.
(4) Where the allegations in the F.I.R. do not
constitute a cognizable offence but constitute
only a non-cognizable offence, no investigation is
permitted by a Police Officer without an order of
a Magistrate as contemplated under S. 155(2) of
the Code.
(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the
basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground
for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted)
to the institution and continuance of the
proceedings and/or where there is a specific
provision in the Code or the concerned Act,
providing efficacious redress for the grievance of
the aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is
maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view
to spite him due to private and personal grudge.
As noted above, the powers possessed by the High Court under
Section 482 of the Code are very wide and the very plenitude of
the power requires great caution in its exercise. Court must be
careful to see that its decision in exercise of this power is
based on sound principles. The inherent power should not be
exercised to stifle a legitimate prosecution. High Court being the
highest Court of a State should normally refrain from giving a
prima facie decision in a case where the entire facts are
incomplete and hazy, more so when the evidence has not been
collected and produced before the Court and the issues involved,
whether factual or legal, are of magnitude and cannot be seen in
their true perspective without sufficient material. Of course, no
hard and fast rule can be laid down in regard to cases in which
the High Court will exercise its extraordinary jurisdiction of
quashing the proceeding at any stage. (See : The Janata Dal etc.
v. H.S. Chowdhary and others, etc. (AIR 1993 SC 892), Dr. Raghubir
Saran v. State of Bihar and another (AIR 1964 SC 1)). It would not
be proper for the High Court to analyse the case of the
complainant in the light of all probabilities in order to
determine whether a conviction would be sustainable and on such
premises, arrive at a conclusion that the proceedings are to be
quashed. It would be erroneous to assess the material before it
and conclude that the complaint cannot be proceeded with. In
proceeding instituted on complaint, exercise of the inherent
powers to quash the proceedings is called for only in a case where
the complaint does not disclose any offence or is frivolous,
vexatious or oppressive. If the allegations set out in the
complaint do not constitute the offence of which cognizance has
been taken by the Magistrate, it is open to the High Court to
quash the same in exercise of the inherent powers under Section
482 of the Code. It is not, however, necessary that there should
be meticulous analysis of the case before the trial to find out
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whether the case would end in conviction or acquittal. The
complaint has to be read as a whole. If it appears that on
consideration of the allegations in the light of the statement
made on oath of the complainant that the ingredients of the
offence or offences are disclosed and there is no material to show
that the complaint is mala fide, frivolous or vexatious, in that
event there would be no justification for interference by the High
Court. When an information is lodged at the police station and an
offence is registered, then the mala fides of the informant would
be of secondary importance. It is the material collected during
the investigation and evidence led in Court which decides the fate
of the accused person. The allegations of mala fides against the
informant are of no consequence and cannot by itself be the basis
for quashing the proceeding. (See : Mrs. Dhanalakshmi v. R.
Prasanna Kumar and others (AIR 1990 SC 494), State of Bihar and
another v. P. P. Sharma, I.A.S. and another (1992 Suppl (1) SCC
222), Rupan Deol Bajaj (Mrs.) and another v. Kanwar Pal Singh Gill
and another (1995 (6) SCC 194), State of Kerala and others v. O.C.
Kuttan and others (1999 (2) SCC 651), State of U.P. v. O. P.
Sharma (1996 (7) SCC 705), Rashmi Kumar (Smt.) v. Mahesh Kumar
Bhada (1997 (2) SCC 397), Satvinder Kaur v. State (Govt. of NCT of
Delhi) and another (1999 (8) SCC 728), Rajesh Bajaj v. State NCT
of Delhi and others AIR 1999 SC 1216).
These aspects were also highlighted in State of Karnataka v.
M. Devendrappa and another (2002 (3) SCC 89).
It is to be noted that the investigation was not complete
and at that stage it was impermissible for the High Court to look
into materials, the acceptability of which is essentially a matter
for trial. While exercising jurisdiction under Section 482 of the
Code, it is not permissible for the Court to act as if it was a
trial Judge. Even when charge is framed at that stage, the Court
has to only prima facie be satisfied about existence of sufficient
ground for proceeding against the accused. For that limited
purpose, the Court can evaluate material and documents on records
but it cannot appreciate evidence. The Court is not required to
appreciate evidence to conclude whether the materials produced are
sufficient or not for convicting the accused. In Chand Dhawan
(Smt.) v. Jawahar Lal and Ors. (1992 (3) SCC 317), it was observed
that when the materials relied upon by a party are required to be
proved, no inference can be drawn on the basis of those materials
to conclude the complaint to be unacceptable. The Court should
not act on annexures to the petitions under Section 482 of the
Code, which cannot be termed as evidence without being tested and
proved. When the factual position of the case at hand is
considered in the light of principles of law highlighted, the
inevitable conclusion is that the High Court was not justified in
quashing the investigation and proceedings in the connected case
(Crime No. 116/94) registered by the Special Police Establishment,
Lokayukt, Gwalior. We set aside the impugned judgment. The State
shall be at liberty to proceed in the matter further.
By interfering with the impugned order, it shall not be
construed as if we have expressed any opinion on the merits of the
case.
The appeal is allowed accordingly.
+
5 3017 1997
5 2696-2697 2003