2016 (2) TMI 1384 - HC - Indian Laws

Prosecution of husband of the petitioner under Section 13(1)(e) read with 13(2) of the Prevention of Corruption Act 1988 - allegation against the petitioner is that she has instigated her husband to legalize the income illegally acquired by him - offence punishable under Section 109 177 468 465 and 471 IPC - HELD THAT - In the case on hand initially the case is registered against husband of the petitioner and petitioner was interrogated and those statements recorded through the petitioner are made use of for registering the case against the petitioner which is not permissible in view of the right enshrined under Article 20(3) of the Constitution which provides that no person accused of any offence shall be compelled to be a witness against himself. In order to exercise power of inherent jurisdiction to interdict criminal prosecution the circumstances are that no case is made out for the alleged offences on the available materials to prevent the abuse of process of the court and to secure the ends of justice. It is alleged that the petitioner has instigated her husband to legalize the illegal income of her husband by purchasing site flat complex and buildings in her name. Except the allegation the prosecution has not placed any material in support of this allegation. It is true that just because the person is assessed to Income tax and income tax is paid is the conclusive proof that the income and the properties assessed in his/her name are the properties of that assessee. Because by acquiring the property in the name of family members and by assessing the income and the properties in his/her name and paying the income tax one can easily get through. It depends upon the facts of the particular case for which the other attendant factors are to be considered - Here in the instant case the petitioner claims agricultural income as well as the business income for which she has been assessed all throughout which are not duly verified before asserting that the petitioner has committed the alleged offences. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. The Magistrate has to carefully scrutinize the materials brought on record consider the explanation given by the parties and to find out the truthfulness of the allegations or otherwise and then examine if any prima facie case is made out to proceed against the accused. The court below has failed to apply this test before taking cognizance of the offences alleged against the petitioner. This is a case where petitioner has made out a case for interference and to set aside the impugned order so far as the petitioner is concerned - the impugned order is set aside - petition allowed.

Issues Involved:
1. Prosecution of the petitioner's husband u/s 13(1)(e) read with 13(2) of the Prevention of Corruption Act, 1988.
2. Cognizance taken against the petitioner u/s 109, 177, 468, 465, and 471 IPC.
3. Validity of the Magistrate's order taking cognizance.
4. Jurisdiction of Lokayuktha police to investigate IPC offences.
5. Allegations of mala fide intention and suppression of evidence by the respondent police.

Summary of Judgment:

Issue 1: Prosecution of the petitioner's husband u/s 13(1)(e) read with 13(2) of the Prevention of Corruption Act, 1988.
The Lokayuktha sought to prosecute the husband of the petitioner for possessing disproportionate assets during the check period from 29.8.1992 to 22.6.2012. The case was registered in Crime No.54/2012.

Issue 2: Cognizance taken against the petitioner u/s 109, 177, 468, 465, and 471 IPC.
The petitioner was made Accused No.2 on the grounds of instigating her husband to legalize illegally acquired income and fabricating income tax returns. The learned Magistrate took cognizance of the offences against both the husband and the petitioner based on the charge sheet filed by the Lokayuktha Police.

Issue 3: Validity of the Magistrate's order taking cognizance.
The court found that the Magistrate's order lacked judicial application of mind. The order merely stated, "Perused the final report. Cognizance is taken against the accused No.1 and 2. Register the case and issue summons," which does not indicate the specific offences alleged against each accused. The court emphasized that the Magistrate must evaluate the materials on record and provide reasons, however brief, for proceeding against the accused.

Issue 4: Jurisdiction of Lokayuktha police to investigate IPC offences.
The court referred to the decision in C Vishvanatha & another v. State of Karnataka, which held that Lokayuktha police could only investigate offences under the PC Act, 1988, and not exclusively IPC offences. The petitioner was charged exclusively with IPC offences, and thus, the Lokayuktha police did not have jurisdiction to investigate these charges.

Issue 5: Allegations of mala fide intention and suppression of evidence by the respondent police.
The petitioner argued that the respondent police did not verify the original income tax returns and suppressed material evidence. The court noted that the petitioner's income tax returns and revised assessments were accepted by the Income Tax Department, and the respondent police failed to verify these before alleging offences under Section 177 IPC. The court found the investigation tainted with mala fides and an abuse of process.

Conclusion:
The court allowed the petition, setting aside the impugned order against the petitioner. The Magistrate's order was found to lack the necessary judicial application of mind, and the Lokayuktha police were deemed to have acted beyond their jurisdiction in investigating IPC offences against the petitioner.

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