TMI Blog2011 (2) TMI 1539X X X X Extracts X X X X X X X X Extracts X X X X ..... view of the above, we are of the considered opinion that judgments and orders of the courts below cannot be sustained in the eyes of law and they are liable to be set aside. The appeal is allowed. - CRIMINAL APPEAL NO. 945 of 2003 - - - Dated:- 25-2-2011 - SATHASIVAM, P AND CHAUHAN, B.S (DR), JJ. J U D G M E N T Dr. B.S. CHAUHAN, J. 1. This appeal has been preferred against the judgment and order dated 11.12.2002 passed by the High Court of Sikkim at Gangtok in Criminal Appeal No. 4 of 2002, upholding the judgment and order dated 30.5.2002, passed by the Special Judge, Prevention of Corruption Act, Gangtok in Criminal Case No. 4 of 1997, convicting the appellant for the offences punishable under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 (hereinafter called as PC Act 1988) and awarding him the sentence of 3 years RI and a fine of ₹ 10,000/-, in default thereof, to undergo a further RI for six months. 2. Facts and circumstances giving rise to appeal are as under: (A) The appellant joined the Special Branch of Police in the State of Sikkim as a Constable in 1972. He was accorded promotion to the rank of Head Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter called Cr.P.C.) on 29.11.2001. Subsequent thereto, in support of his case the appellant also examined 4 witnesses. The Special Judge held the appellant guilty of the aforesaid charges vide judgment and order dated 30.5.2002 and awarded the punishment mentioned hereinabove. (I) Being aggrieved, the appellant approached the High Court by filing Criminal Appeal No.4 of 2002. During the hearing of the appeal, an argument was advanced before the High Court that a large number of documents, particularly the Exhibits P/16, P/17, P/23, P/33, P/34, P/35(I), P/35(II), P/35(III), P/62 and P/63, though relied by the Special Judge during the trial, had not been proved in evidence. Therefore, the judgment of the Special Court suffered from fundamental procedural errors and stood vitiated. The High Court instead of deciding the appeal taking into account the aforesaid argument, remitted the matter to the Trial Court vide order dated 27th September, 2002, giving an opportunity to the prosecution to prove those documents and it directed the Trial Court to send the file back to the High Court after completing that formal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s judicial pronouncements of this Court. The documents very heavily relied upon by the prosecution had never been proved in spite of remand of the case for that purpose. Remand even for limited purpose to prove the documents was impermissible as it is tantamount to giving an opportunity to the prosecution to fill up any lacunae in its case. The procedural error committed by the prosecution is not curable. Therefore, the entire prosecution proceedings stood vitiated. More so, the evidence adduced by the appellant in defence regarding the income from his rented premises had been discarded on flimsy grounds e.g. that the tenants had not shown their income and expenditure while filling up the income tax returns, nor had the tenants produced the rent receipts or on the basis that there was some discrepancy between the income derived from the tenants and the amounts shown from other sources while submitting the Ext. D-4. Shri Bobde has further submitted that the Explanation added to Section 13(1)(e) of PC Act 1988 did not exist in the Prevention of Corruption Act, 1947 (hereinafter called Act 1947). It provides that known sources of income means income received from any lawful sourc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered as PC Act 1947 as well as PC Act 1988 provided for the possession of assets at any time during the period of his office. Defence evidence has rightly been discarded by the courts below being not reliable. Any error, omission or irregularity in the sanction does not vitiate the trial unless a failure of justice has been occasioned thereby. Thus, the appeal is devoid of any merit and is liable to the dismissed. 5. We have considered the rival submissions made by learned counsel for the parties and perused the record. 6. This Court in P. Sirajuddin etc. v. The State of Madras etc., AIR 1971 SC 520; and State of Haryana Ors. v. Ch. Bhajan Lal Ors., AIR 1992 SC 604 has categorically held that before a public servant is charged with an act of dishonesty which amounts to serious mis-demeanor and an FIR is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. Such a course has not been adopted by the prosecution though the law declared by this Court is binding on everyone in view of the provisions of Article 14 of the Constitution, which would by all means override the statutory provisions of the Cr.P.C. and such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion could meet the requirement of law. After considering the statutory provisions, the Court came to the conclusion that as oral approval was obtained from the competent officer concerned, it was sufficient to legalise the further action. 10. In State Inspector of Police, Vishakhapatnam v. Surya Sankaram Karri, (2006) 7 SCC 172, a two-Judge Bench of this Court had taken a contrary view without taking note of the earlier two-Judge Bench judgment in Kalpnath Rai (supra) and held as under: When a statutory functionary passes an order, that too authorizing a person to carry out a public function like investigation into an offence, an order in writing was required to be passed. A statutory functionary must act in a manner laid down in the statute. Issuance of an oral direction is not contemplated under the Act. Such a concept is unknown in administrative law. The statutory functionaries are enjoyed with a duty to pass written orders. However, the Court taking note of subsequent proceedings recorded its conclusions as under: `It is true that only on the basis of illegal investigation a proceeding may not be quashed unless miscarriage of justice is shown, but in this case as we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC 604, this Court dealing with the same provisions held that a conjoint reading of the main provision, Section 5-A(1) (new Section 17) and the two provisos thereto, shows that the investigation by the designated police officer was the rule and the investigation by an officer of a lower rank was an exception. It has been ruled by the Court in several decisions that Section 6-A (new Section 23) of the Act was mandatory and not directory and the investigation conducted in violation thereof bears the stamp of illegality, but that illegality committed in the course of an investigation, does not affect the competence and the jurisdiction of the Court for trial and where the cognizance of the case has in fact been taken and the case has proceeded to termination, the validity of the proceedings is not vitiated unless a miscarriage of justice has been caused as a result of the illegality in the investigation. In the facts and circumstances of the case, we are also not willing to examine the correctness of submissions made by Mr. Bobde in respect of segregation of period covered by two Acts and as to whether ratio of the judgment of this Court in State of Maharashtra v. Krishnarao Dudhap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The community or the State is not a persona-non-grata whose cause may be treated with disdain. The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest..... 17. In Rambhau (supra), a larger Bench of this Court held as under: Incidentally, Section 391 forms an exception to the general rule that an Appeal must be decided on the evidence which was before the Trial Court and the powers being an exception shall always have to be exercised with caution and circumspection so as to meet the ends of justice. Be it noted further that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, even if it is assumed that the form required to be filled up under Rule 19 of the Rules 1981 was mandatory and the appellant failed to fill up the same, for the reason that the form had never been prescribed under the Rules 1981, and he ought to have declared the same on plain papers, as he did on instructions of the superior authority after lodging of the FIR against him, the document Ext.D-4 could not be rejected merely on the ground that it had been submitted after the lodging of the FIR. Not filling up the form under the mandatory requirement of Rule 19 of Rules 1981 may render the appellant liable for disciplinary proceedings under service jurisprudence, but that itself cannot be a ground for rejection of the said documents in toto without examining the contents thereof. In this regard, we are of the considered view that the courts below have committed a grave error and the contents thereof should have been examined. 22. In Bharat Sanchar Nigam Limited Anr. v. BPL Mobile Cellular Limited Ors., (2008) 13 SCC 597, this Court held that prescribed means that prescribed in accordance with law and not otherwise. Thus, in view of the above, furnishing information abou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 1981 cannot by any stretch of imagination be said to have the effect of rendering evidence inadmissible in criminal proceedings under the PC Act 1988. Thus, in such a fact situation, the appellant could not be fastened with criminal liability for want of compliance of the said requirement of the Rules. 26. Learned senior counsel appearing for the respondent has placed a great deal of emphasis on the argument that Mohanlal Goyal, D.W.1, Nagaram Agrawal, D.W.2, Thakur Bansari, D.W.3 and Dil Hassasan Ansari, D.W.4, did not show that they had taken the shops from the appellant on rent as they did not disclose the said fact in their respective income tax returns nor did they produce sales tax returns or rent receipts. There can be no doubt that the fact that DWs 1-4 did not show the transactions in their IT returns reduces their credibility in the eyes of the Court, but that does not have any impact on the contents of Ext. D-4 itself. 27. Thus, it becomes clear that the High Court erred in not placing reliance on the evidence contained in Ext. D-4. Taking into consideration the contents of Ext. D-4, it becomes clear that the alleged unexplained income of the Appellant is onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vestigation, trial and appeal, the income contained in Ex.D-4 has been totally ignored in computing the income from known sources as being ₹ 14,54,629.81. B.K. Roka, PW.19, the Superintendent of Police has admitted that even before sanction was granted on 5.4.1997, the accused had complied with Rule 19 and that Ex.D-4, subject to mathematical accuracy, for the years 1987-1994 would aggregate to ₹ 15,88,400/- according to the break-up of each financial year. Similarly, Chand Prakash Raya, P.W.6 stated that through Ex.D-4 the accused had complied with Rule 19. Therefore, this figure should have been added to income from known sources which would have then amounted to ₹ 30,43,029.81. Even if the expenditure is taken to be ₹ 12,75,928.05, the likely savings amount is ₹ 17,67,101.76 and not ₹ 1,78,701.76. Thus, the gap between the assets worth ₹ 20,38,715.45 and the savings of ₹ 17,67,10176 would be ₹ 2,71,613.69 instead of ₹ 18,25,098.69. Thus, the table above should have read as follows: Known income of appellant and his wife during the check period (+) income explained and accounted for in Ext. D-4 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
