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TMI Blog2014 (1) TMI 553X X X X Extracts X X X X X X X X Extracts X X X X ..... ied - If the Trial court is satisfied that a prima facie case is made out, charge has to be framed - Accused N. Suresh Rajan has acquired properties disproportionate to his known sources of income in the names of his father and mother - The property in the name of an income tax assessee itself cannot be a ground to hold that it actually belongs to such an assessee - In case this proposition is accepted, it will lead to disastrous consequences - It will give opportunity to the corrupt public servants to amass property in the name of known persons, pay income tax on their behalf and then be out from the mischief of law - While passing the impugned orders, the court has not sifted the materials for the purpose of finding out whether or not there is sufficient ground for proceeding against the accused but whether that would warrant a conviction - This was not the stage where the court should have appraised the evidence and discharged the accused as if it was passing an order of acquittal - Defect in investigation itself cannot be a ground for discharge - The order impugned suffers from grave error and calls for rectification - The Court shall proceed with the trial from the stage of ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, Respondent No.1, N. Suresh Rajan has acquired and was in possession of pecuniary resources and properties in his name and in the names of his father, K. Neelakanda Pillai (Respondent No. 2) and mother R. Rajam (Respondent No. 3) and his wife D.S. Bharathi for total value of ₹ 17,58,412.47. The investigating officer also came to the conclusion that Minister s father and mother never had any independent source of income commensurate with the property and pecuniary resources found acquired in their names. Accordingly, the investigating officer submitted the charge-sheet dated 4th of July, 2003 against Respondent No.1, the Minister and his father (Respondent No.2) and mother (Respondent No.3) respectively, alleging commission of an offence under Section 109 of the Indian Penal Code and Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act. Respondents filed application dated 5th of December, 2003 under Section 239 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code ), seeking their discharge. The Special Judge, by its order dated 25th of September, 2009 rejected their prayer. While doing so, the Special Judge observed as follows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecial leave petitions. Mr. Ranjit Kumar, learned Senior Counsel for the petitioner submits that the delay in filing the special leave petitions has occurred as the Public Prosecutor earlier gave an opinion that it is not a fit case in which special leave petitions deserve to be filed. The Government accepted the opinion and decided not to file the special leave petitions. It is pointed out that the very Government in which one of the accused was a Minister had taken the aforesaid decision not to file special leave petitions. However, after the change of the Government, opinion was sought from the Advocate General, who opined that it is fit case in which the order impugned deserves to be challenged. Accordingly, it is submitted that the cause shown is sufficient to condone the delay. Mr. Soli J. Sorabjee, learned Senior Counsel appearing for the respondents, however, submits that mere change of Government would not be sufficient to condone the inordinate delay. He submits that with the change of the Government, many issues which have attained finality would be reopened after long delay, which should not be allowed. According to him, condonation of huge delay on the ground that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cers or agents and where the officers were clearly at cross purposes with it. In a given case if any such facts are pleaded or proved they cannot be excluded from consideration and those factors may go into the judicial verdict. In the present case, no such facts are pleaded and proved though a feeble attempt by the learned counsel for the respondent was made to suggest collusion and fraud but without any basis. We cannot entertain the submission made across the Bar without there being any proper foundation in the pleadings. The contentions put forth by Mr. Sorabjee are weighty, deserving thoughtful consideration and at one point of time we were inclined to reject the applications filed for condonation of delay and dismiss the special leave petitions. However, on a second thought we find that the validity of the order impugned in these special leave petitions has to be gone into in criminal appeals arising out of Special Leave Petitions (Criminal) Nos. 3810-3811 of 2012 and in the face of it, it shall be unwise to dismiss these special leave petitions on the ground of limitation. It is worth mentioning here that the order impugned in the criminal appeals arising out of Special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, Anti-Corruption Department on 14th of March, 2002 under Section 109 of the Indian Penal Code read with Section 13(2) and Section 13(1)(e) of the Prevention of Corruption Act, hereinafter referred to as the Act . During the course of investigation it transpired that between the period from 13.05.1996 to 31.03.2002, the Minister had acquired and possessed properties at Mathirimangalam, Kaspakaranai, Kappiampuliyur villages and other places in Villupuram Taluk, at Vittalapuram village and other places in Thindivanam Taluk, at Cuddalore and Pondicherry Towns, at Chennai and Trichy cities and at other places. It is alleged that respondent No.1-Minister being a public servant committed the offence of criminal misconduct by acquiring and being in possession of pecuniary resources and properties in his name and in the names of his wife, mother- in-law and also in the name of Siga Educational Trust, held by the other respondents on behalf of Respondent No. 1, the Minister, which were disproportionate to his known sources of income to the extent of ₹ 3,08,35,066.97. According to the prosecution, he could not satisfactorily account for the assets and in this way, the Minister had co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the expenditures exaggerated. According to Respondent No. 1, the Minister, income of the individual property of his wife and that of his mother-in-law and their expenditure ought not to have been shown as his property. According to him, the allegation that the properties in their names are his benami properties is wrong. It was also contended that the valuation of the properties has been arrived at without taking into consideration the entire income and expenditure of Respondent No. 1. Respondents have also alleged that the investigating officer, who is the informant of the case, had acted autocratically and his action is vitiated by bias. The Special Judge examined all these contentions and by order dated 21st of July, 2004 discharged Respondents on its finding that the investigation was not conducted properly. The Special Judge further held that the value of the property of Respondent Nos. 2 to 5 ought not to have been clubbed with that of the individual properties and income of Respondent No. 1 and by doing so, the assets of Respondent No. 1 cannot be said to be disproportionate to his known sources of income. On the aforesaid finding the Special Judge discharged all the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assets the prosecution belatedly arrayed the Trustees of the Trust as accused 3 to 5 in order to foist a false case as against A1. xxx xxx xxx 21 All the properties acquired by A2 and A3 in their individual capacity acquired out of their own income have been shown in the Income Tax Returns, which fact the prosecution also knows and also available in the records of the prosecution. The prosecution has no justification or reason to disregard those income tax returns to disallow such income while filing the final report. The documents now available on record also would clearly disprove the claim of benami transaction. The High court ultimately concluded as follows: 24 Therefore, the trial court analyzing the materials and documents that were made available at the stage of framing charges and on their face value arrived at the right conclusion that charges could not be framed against the respondents/accused. Now we proceed to consider the legal position concerning the issue of discharge and validity of the orders impugned in these appeals in the background thereof. Mr. Ranjit Kumar submits that the order impugned suffers from patent illegality. He poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e v. State of Maharashtra, (2002) 2 SCC 135, reference has been made to the following paragraph of the said judgment: 12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence. Now reverting to the decisions of this Court in the case Sajjan Kumar (supra) and Dilawar Balu Kurane (supra), relied on by the respondents, we are of the opinion that they do not advance their case. The aforesaid decisions consider the provision of Section 227 of the Code and make it clear that at the stage of discharge the Court can not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it was conducting a trial. It is worth mentioning that the Code contemplates discharge of the accused by the Court of Sessions under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and a State Minister, he had acquired and was in possession of the properties in the name of his wife as also his mother-in-law, who along with his other friends, were of Siga Educational Trust, Villupuram. According to the prosecution, the properties of Siga Educational Trust, Villupuram were held by other accused on behalf of the accused Minister. These properties, according to the prosecution, in fact, were the properties of K.Ponumudi. Similarly, accused N. Suresh Rajan has acquired properties disproportionate to his known sources of income in the names of his father and mother. While passing the order of discharge, the fact that the accused other than the two Ministers have been assessed to income tax and paid income tax cannot be relied upon to discharge the accused persons particularly in view of the allegation made by the prosecution that there was no separate income to amass such huge properties. The property in the name of an income tax assessee itself cannot be a ground to hold that it actually belongs to such an assessee. In case this proposition is accepted, in our opinion, it will lead to disastrous consequences. It will give opportunity to the corrupt public servant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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