CRIMINAL APPEAL(SJ) NO. 212 OF 2010
Against the judgment and order passed by Special Judge
( Vigilance), Ranchi in Special Case No. 10 of 1990 dated
11.01.2010
.
WITH
CRIMINAL APPEAL (SJ) NO. 1393 OF 2008
Against the judgment of conviction and sentence dated
2.12.2008 passed in Special Case No. 10 of 1990, Patna Sadar
( Vigilance) P.S. Case No. 20 of 1990 by Sri Anant Kumar Singh,
Special Judge, Vigilance, Ranchi
Damodar Mishra …….Appellants ( in both the cases)
Vs.
The State of Jharkhand through Vigilance.. …..Respondent
( in both the cases)
For the Appellants : Mr. B.P.Pandey, Sr. Advocate
( in both the cases)
For the Respondents : Mr. Nilesh Kumar, (Vigilance)
( in both the cases)
PRESENT
HON’BLE MR. JUSTICE PRASHANT KUMAR
C.A.V. ON 04.08.2011 DELIVERED ON 20 /10/2011
Prashant Kumar,J: Cr. Appeal 1393 of 2008 has been filed against the
judgment of conviction and order of sentence dated 2.12.2008 passed
by Special Judge ( Vigilance), Ranchi in Special Case No. 10 of 1990
corresponding to Patna Sadar ( Vig) Case No. 20 of 1990, whereby
appellant was convicted under section 5(2) read with section 5(1)(e) of
the Prevention of Corruption Act, 1947 substituted by section 13(2)
read with section 13(1)(e) of the Prevention of Corruption Act, 1988
and sentenced to under go R.I. for three years and also directed to pay
fine of Rs. 10,000/- and in default further undergo simple
imprisonment for 14 days.
Cr. Appeal No. 212 of 2010 has been filed against the order
dated 11.1.2010 passed by Special Judge, ( Vigilance) Ranchi in
Special Case No. 10 of 1990, whereby the learned court below
confiscated the cash, documents and other articles details of which
given in Annexure- 1 to the petition dated 8.10.2009 and refused to
release the same as prayed by the appellant.
2. Cr. Appeal No. 1393 of 2008
The case of prosecution in brief is that the informant obtained a
search warrant from the court of Special Judge, Vigilance, Patna in
connection with Patna(Vig) Case No. 18 of 1990 for search of the
house of appellant situated at Hehal, Ranchi. It is further stated that
the said search warrant was handed over to Sri S. Hembrom, Dy.
Superintendent of Police ( Vig), Ranchi for execution. Accordingly, Sri
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Hembrom along with independent witness and other officers of
Vigilance Bureau searched house of appellant on 26.5.1990. Thereafter
three lockers of appellant opened and searched at Bank of India,
Shyamli Branch, Ranchi, State Bank of India, Pandra Branch and
Allahabad Bank, Main Road Branch, Ranchi respectively. It is further
alleged that in course of search cash, ornaments, house hold furniture,
motor car, motor cycle, documents showing investments in Unit Trust
of India, different banks, Post office, NSS, NSC and documents showing
purchase of lands, were recovered. The total of the aforesaid
properties come to Rs. 1090432/-. It is also alleged that the son of
appellant was a student at the time of search and a life insurance
policy of Rs. 50,000/- was found in his name. Thus, it was presumed
that premium of the said policy was also paid by the appellant. It is
then alleged that the value of the appellant’s house at Hehal was
about Rs. 10,00000/-. It is further stated that the informant had
received information that appellant spent a handsome amount in
marriage of his daughter and son. It is also stated that standard of
living of appellant is very high. It is then alleged that the properties
recovered from the house and bank lockers of appellant were beyond
the known source of income of appellant. Hence, it is alleged that the
appellant had committed an offence under section 5(2) read with
section 5(1)(e) of the Prevention of Corruption Act, 1947 substituted by
section 13(2) read with section 13(1)(e) of the Prevention of Corruption
Act, 1988.
3. It appears that on the basis of aforesaid written report Patna
Viglance P.S. Case No. 20 of 1990 under section 5(2) read with section
5(1)(e) of the Prevention of Corruption Act, 1947 substituted by section
13(2) read with section 13(1)(e) of the Prevention of Corruption Act,
1988 registered and Investigating Officer ( hereinafter referred as I.O.)
took up investigation. It then appears that on completion of
investigation, charge sheet submitted against the appellant under
section 5(2) read with section 5(1)(e) of the Prevention of Corruption
Act, 1947 substituted by section 13(2) read with section 13(1)(e) of the
Prevention of Corruption Act, 1988. It then appears that learned
Special Judge, took cognizance of the aforesaid offences. Thereafter
the charges under section 5(2) read with section 5(1)(e) of the
Prevention of Corruption Act, 1947 substituted by section 13(2) read
with section 13(1)(e) of the Prevention of Corruption Act, 1988. was
framed. The record further reveals that prosecution examined
altogether 12 witnesses. After the close of case of prosecution,
appellant was examined under section 313 of the Cr.P.C,. in which his
defence is of total denial. Appellant also examined 12 witnesses in his
defence.
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4. It appears that the learned court below after considering the materials
available on record convicted and sentenced the appellants as
stated above vide its judgment and order dated 2.12.2008, against
that present appeal filed.
5. While assailing the impugned judgment, it is submitted by Sri B.P.
Pandey, Sr. Advocate, learned counsel appearing for the appellant that
for proving the charge under section 5(2) read with section 5(1)(e) of
the Prevention of Corruption Act, 1947 substituted by section 13(2)
read with section 13(1)(e) of the Prevention of Corruption Act, 1988. it
is essential for the prosecution to prove the known source of income of
the accused. Thereafter prosecution is required to prove objectively
that the property found in possession of the accused are
disproportionate to his known source of income. It is submitted that
none of the prosecution witnesses stated regarding the source of the
income of appellant. It is further submitted that the value of the
property seized from the house of appellant were fixed merely on
assumption and presumption. The articles seized from the possession
of appellant never sent to any expert for valuation. It is further
submitted that the learned court below had considered the bail
application of appellant for ascertaining his income from salary. It is
submitted that said bail application neither proved by the prosecution
nor by the defence, in spite of that the learned court below used it as a
substantive evidence, which is wholly illegal. It is further submitted
that though the learned court below considered said bail application for
holding appellant guilty, but no question put to the appellant, while
examining him under section 313 Cr.P.C., with regard to said bail
application. Thus the entire judgment of the court below is liable to be
vitiated. It is further submitted that the I.O. has not been examined in
this case and due to non examination of I.O., serious prejudice had
been caused to the appellant, as he had given explanation to the I.O.
regarding his assets as ordered by Hon’ble Patna High court in Cr.
W.J.C No. 360 of 1990. It is then submitted that due to non
examination of I.O., appellant was not able to know, whether the I.O.
verified the truthfulness of explanation given by him regarding his
assets. Accordingly, it is submitted that in the instant case, non
examination of I.O. is fatal to the case of prosecution.
6. On the other hand , Sri Nilesh Kumar, learned Additional P.P.
submits that in view of the admission of the appellant in the ABA, it is
not necessary for the prosecution to prove the gross salary received by
the appellant during his entire service period. It is further submitted
that the learned court below had explained all the circumstances to the
appellants while examining him under section 313 of the Cr.P.C.. It is
further submitted that other police officer had already appeared and
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they deposed regarding the facts of this case, thus no prejudice caused
to the appellant. Accordingly, non examination of I.O. has no bearing
on the case of prosecution. It is submitted that there is no illegality
and/or irregularities in the impugned judgment which requires any
interference by this Court.
7. Having heard the submission, I have gone through the record of
the case. In the instant case, as noticed above, the appellant was
charged under section 5(2) read with section 5(1)(e) of the Prevention
of Corruption Act, 1947 substituted by section 13(2) read with section
13(1)(e) of the Prevention of Corruption Act, 1988 . It will be apposite
to quote section 5(1)(e) of Prevention of Corruption Act, 1947 which
reads as under:-
5. Criminal misconduct in discharge of official duty:-
(1) A public servant is said to commit the offence of
criminal misconduct(a)………..
(b)……….
( c)…………
(d)………..
(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.Section 13(1)(e) of Prevention of Corruption Act, 1988 runs as
follows:-13. Criminal misconduct by a public servant.- (1) A public
servant is said to commit the offence of criminal
misconduct;-(a)……..
(b)……..
(c )…….(d)……..
(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
accordance with the provisions of any law, rules or orders
for the time being applicable to a public servant.
The Hon’ble Supreme Court in M. Krishna Reddy Vs. State
Deputy Superintendent of Police, Hyderabad reported in (1992) 4 SCC
45 as held that
” to substantiate a charge under section 5(1)(e) of
Prevention of Corruption Act, 1947 the prosecution must
prove the following ingredients, namely, (I) the
prosecution must establish that the accused is a public
servant. (ii) The nature and extent of pecunary resources
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or property which were found in his possession (iii) It must
be proved as to what were his known sources of income
I.e. known to the prosecution and (iv) it must prove quite
objectively that such resources or property found in
possession of accused were disproportionate to his known
source of income. Once the above ingredients are
satisfactorily established , the offence of criminal mis-
conduct under section 5(1)(e) is complete, unless the
accused is able to account for such resources or property.
In other words , only after prosecution has proved the
required ingredients, the burden satisfactorily accounting
for the possession of such resources or property shifts to
the accused”.
Keeping in view the aforesaid law laid down by their Lordships of
Hon’ble Supreme Court, I am proceeding to consider the evidence of
prosecution to see whether aforesaid ingredients were proved by it ?
8. In the instant case, as noticed above, prosecution examined
altogether 12 witnesses. P.W. 1 Parsuram Singh is a seizure list
witness, he has only proved his signature on the seizure list ( Ext.1).
P.W. 2 Muneshwar Prasad Sinha is also a witness of seizure list, who
proved his signature ( Ext. 1/1). P.W. 3 Kumar Ajay Pratap was the
Branch Manager of the Bank of India, Shyamli Branch at that relevant
time, he only stated that on 29.5.1990 in his presence, locker of
appellant was opened and searched by Vigilance Officers and from
there Rs. 88980/- recovered and seized. He further deposed that said
amount kept in suspense account of the bank. He also stated that
some officers of vigilance department deposited Rs. 99058/- and Rs.
45000/- in the suspense account of the bank on 30.5.1990. P.W. 4 Md.
Mansoor Alam and P.W. 5 Madhur Srivastava were accountant and
Branch Manager respectively of the State Bank of India, Pandara
Branch, Ranchi. They stated that on 30.5.1990 in their presence the
bank locker of appellant was opened and from there Rs. 45,000/-
seized. P.W. 7 Abhay Kumar was the Branch Manager of Allahabad
Bank, Main Road Branch, Ranchi. He deposed that on 31.5.1990, in his
presence, bank locker of appellant was opened and from the said
locker Rs. 1,48910/- recovered. He further deposed that apart from
said cash, some ornaments of gold, silver and five silver coins
recovered and a seizure list prepared. P.W. 6, S. Hembrom, P.W. 8
Ramyash Singh, P.W. 9 Parmeshwar Das, P.W. 11 Bimlesh Prasad Sinha
are officers of Vigilance Bureau who participated in the search of
appellant’s house situated at Hehal, Ranchi and also searched three
bank lockers of appellant. P.W. 10 kameshwar Ram is a witness of
search of appellant’s house. P.W.6-A Brajmohan Lal was the officer in-
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charge of Vigilance police station, Patna, who lodged FIR and handed
over case to B.P. Singh Vikat Additional Superintendent of Police,
Vigilance for investigation.
9. Thus from perusal of evidence of all the prosecution witnesses, I
find that non of the witnesses stated about the income of appellant
from his known sources of income. Thus, prosecution failed to
establish the income of appellant from salary which he earn during his
entire service period. The prosecution had also not adduced any
evidence to show that the appellant has no other source of income. It
is worth mentioning that the prosecution did not prove the method by
which it fixed the value of properties seized from the house of
appellant. It is not out of place to mention that P.W. 11, who is
informant of this case had stated at paragraph no. 11 that he assess
the price of house merely on assumption. P.W. 8, who is officer of the
rank of Superintendent of Police and at the relevant time posted at
Ranchi as Superintendent of Police, Vigilance, had stated at paragraph
no. 10 and 11 of his deposition that for assessing the value of
ornaments he called a goldsmith, however he admits that the said gold
smith did not chemically examine the ornaments. He further states
that he also could not say carat of the gold of which said ornaments
prepared. At paragraph no. 3 this witness further states that he had no
experience of assessing the value of articles seized from the house of
appellant. It is relevant to mention that the said goldsmith was not
examined and no explanation given for his non examination. Thus ,
extent of pecunary resources or property which were found from the
possession of appellant has not been proved by adducing cogent
evidence.
10. In the instant case, since the prosecution had not proved the
income of appellant from known source of his income and also had not
proved the exact price of properties seized from the possession of
appellant, therefore, I find that prosecution failed to prove that the
properties found from the possession of appellant were
disproportionate to his known sources of income.Under the said
circumstance, I find that the prosecution failed to prove three
ingredients, i.e. ingredient nos. 2, 3 and 4, laid down by Hon’ble
Supreme Court in M. Krishna Reddy Case ( supra).
11. It is worth mentioning that the appellant in his statement under
section 313 Cr.P.C. stated that the ornaments and other house hold
articles had been given to his wife as stridhan in the year 1942-43
during marriage, therefore, same cannot be treated as the income of
appellant earned during his service period. The aforesaid statement of
appellant finds support from the evidence of P.W. 6, 7 and 8. P.W. 6 at
paragraph no. 18 of his deposition had stated that all ornaments are
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old. This witness further stated at paragraph 19 that all seized articles
are also old and used from before. P.W. 7 at paragraph no. 7 of his
deposition had stated that all the ornaments are of old style and they
also look old. P.W. 8 at paragraph no. 9 stated that the said ornaments
are old. Thus, explanation of appellant that the said ornaments and
articles seized from his house were acquired by his wife as Stridhan
cannot be thrown over board, that too in absence of any evidence
adduced by prosecution.
12. In the instant case, prosecution had not examined the I.O.
Paragraph no. 54 of the case diary reveals that the appellant appeared
before the Investigating Officer on 9.8.1990 and produced order dated
3.8.1990 passed by Hon’ble Patna High Court in Cr.W.J.C. No. 360 of
1990 and gave explanation regarding the assets found from his
possession. Aforesaid paragraph of case diary further reveals that
appellant stated before the I.O. that apart from income from salary,
other sources of his income is rent from the house, receipt of money on
the maturity of life insurance policy, interests from the bank account,
income from agriculture land, money receipt as loan from provident
fund account, money received as loan for construction of house and
purchase of car. He also stated that just before some month of search
of the house , he entered into an agreement for sale of his ancestral
property and took advance from the vendee. It appears from the case
diary that I.O. examined some persons to verify the truthfulness of the
statement of appellant specially with regard to his income form
agriculture property and earning of his wife from her parent. These
facts were also stated by the appellant and defence witnesses. It has
been held by their Lordship of Hon’ble Supreme Court in State
Inspector of Police Vishakhaptnam Vs. Surya Sankaramkarri
reported in (2006)7 SCC 172 at para 19 that ” least that a court of
law would expect from the prosecution is that the investigation would
be the fair one. It would not only to carried out from the stand of
prosecution but also the defence, particularly in view of the fact that
the onus of proof may shift to the accused at a later stage”. Under the
said circumstances non examination of I.O. in this case has certainly
prejudice the defence, because due to his non examination materials
collected during investigation, specially regarding the defence taken by
appellant, had not been brought on record.
13. It is worth mentioning that learned court below had not accepted the
defence of appellant that he also earns from agriculture by saying that
appellant had not informed the same to the income tax authority. In
this connection, it is stated that check period of present case is before
coming into force of Prevention of Corruption Act, 1988. Thus, the old
Act i.e. Prevention of Corruption Act, 1947 is applicable in this case. It
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has been held by this Court in Vishwanath Singh Vs. State of
Jharkhand reported in (2011) 1 JLJR 255, that under the old law, it
is not imperative upon the public servant to inform his employer or any
other authority regarding his income from any other lawful source.
Under the old law, it is enough for the public servant to inform the
Investigating Officer about the acquisition of income from other legal
source and it is for the Investigating Officer to investigate the claim of
public servant in that regard. As noticed above, in the instant case ,
appellant disclosed his income to the Investigating Officer from other
lawful sources. Thus it is for Investigating Officer to investigate the
case and verify the truthfulness of the statement made by the
appellant and inform the court about it. Therefore, on this score also
non examination of I.O. had prejudiced the appellant. Accordingly, I
find that non examination of I.O. in this case is fatal to the case of
prosecution.
14. From perusal of impugned judgment, I find that the learned
court below taken into account statement made by the appellant in
supplementary bail application dated 25.6.1990 regarding his income
from salary during his service period i.e. from 1955 to 1988. It is
worth mentioning that the said bail application has not been proved by
prosecution nor it was brought on record by the defence. Under the
said circumstance, I find that the learned court below relied upon a
document which was not proved by either of the party. Thus, the same
cannot be treated as an evidence. It is worth mentioning that the
learned court below relied upon a judgment of the Hon’ble Delhi
High Court reported in AIR 1984 Delhi 20 for using the aforesaid
supplementary bail application. It appears that the said judgment was
delivered by the Delhi High Court in a Civil proceeding. It is worth
mentioning that degree of proof in civil case differs from the degree of
proof in criminal case. In a civil case a fact can be proved by
preponderance of probabilities, whereas in criminal case every fact is
required to be proved, strictly beyond the shadow of all reasonable
doubts. Thus the judgment of Hon’ble Delhi High Court, relied by the
learned court below, has no application in criminal case. Even
assuming for the sake of argument that the said bail application can be
looked into by the trial court for convicting the appellant, then it was
mandatory for the learned court below to give opportunity to the
appellant to explain it while examining him under section 313 of the
Cr.P.C. From the perusal of statement of appellant under section 313
Cr.P.C., I find that the learned court below had not asked any question
seeking his explanation regarding statements made in the
supplementary bail application dated 25.6.1990. This, in my view, is a
great illegality , which the learned court below committed while
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passing the impugned judgment.
15. In view of the discussions made above, I find serious illegality and
irregularities in the impugned judgment of conviction and order of
sentence. Thus, the same cannot be sustained in this appeal.
16. In the result, this appeal is allowed. The impugned judgment of
conviction and order of sentence is set aside.
17. Cr. Appeal No. 212 of 2010.
It is submitted by Sri B.P. Pandey, Sr. Advocate appearing for the
appellant that some cash and documents were seized from the
possession of appellant, by officers of Vigilance department. It is
further submitted that during the pendency of trial, some of the cash
money released in favour of appellants wife and his brother. However,
other cash amount and documents were still lying with the
prosecution. It is submitted that for release of remaining cash amount
and documents, an application filed in the court below on 8.10.2009
and in the said application, the details of cash amount and documents
desired to be released were given at Annexure-1. It is submitted that
the said cash amounts and documents, details of which given in
Annexure-1, had not been exhibited in the case nor confiscated till the
disposal of case in the court below, but the learned court below
arbitrarily refused to release the same and confiscated aforesaid cash
and documents after disposal of the case. Accordingly, it is submitted
that the said order is illegal and cannot be sustained.
18. Sri Nilesh Kumar, however, submits that since the learned court below
confiscated the said cash amount, therefore, question of releasingthem
do not arise.
19. In view of the fact that I concluded that the conviction of appellant in
the present case is illegal and I have already set aside the judgment of
conviction and order of sentence, while deciding Cr. Appeal No. 1393 of
2008, the present appeal is also allowed and impugned order is set
aside. The learned court below is directed to release the cash amount
and documents, enumerated in Annexure- 1 to the petition dated
8.10.2009, forthwith in favour of appellant.
( Prashant Kumar,J.)
Jharkhand High Court, Ranchi
Dated 20 /10/2011
Sharda/NAFR