9911796707
TMI Blog1995 (11) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... his record was unblemished. It appears that one A.C.P.R.B. Kolekar of Anti- corruption Bureau, Bombay on 1.1.1987 made enquiries with regard to the respondent who was, at that time, holding the post of Vigilance Officer in the office of the Transport Commissioner, Bombay. A first information report was recorded by ACP Kolekar on 16.2.1988 and the case was registered vide C.R. No. 4/88 under Section 5(2) read with Section 5(1) (e) of the Prevention of Corruption Act, 1947 (hereinafter referred to as the Act). Thereafter vide a letter dated 8.6.1988, respondent was informed that the Bureau was investigating an offence under Section 5(2) read with Section 5(1) (e) of the Act and the case had been registered on 16.2.1988 for possession of assets disproportionate to his known sources of income. As Section 5(10) (e) of the Act envisaged that the public servant should satisfactorily account for the pecuniary resources and property standing in his name or in the names of others, the respondent was, by the said letter dated 8.6.1988, required to attend the office of Anti Corruption Bureau on 20.6.1988 for the purpose of giving a satisfactorily explanation in respect of properties valued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the aforesaid offence by holding the pecuniary resources or properties in their names, for and on behalf of the accused persons as particularised in one of the annexures to the said schedule attached to the sanctioned order. Soon after the sanction was received, charge-sheet was filed on 8.2.1990 against the respondent, Tarulata Ishwar Kalpatri, his wife, Ramesh Dharmaji Kalpatri, his nephew, Ravindra Nagendra Pakale (brother-in-law) and Mukesh Bagwandas Goglani (a friend). The respondent then filed Criminal Writ Petition No. 854 of 1991 and the case was mentioned for admission before Mr. Justice M.F. Saldanha. After the rule was issued, an affidavit in reply was filed and by the impugned judgment dated 16.10.1992, the proceedings, then pending before the Special Judge, Greater Bombay being Special Case No. 18/90 were quashed. Simultaneously, orders such as attachment etc. were also set aside and the appellants were directed that whatever assets were seized or taken charge of, shall be restored forthwith. The High Court allowed the said writ petition despite an objection having been taken on behalf of the appellant herein that the Court should refrain from exercising it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrectly. On behalf of the respondent, Mr. G.L. Sanghi, Sr. Counsel reiterated the contentions which had found favour with the learned Single Judge and it was submitted that the respondent would be unduly and unnecessarily narassed if he was required to take part in a protracted trial. It was submitted that there were serious allegations of mala fides against the authorities and principles of natural justice were violated because no opportunity was granted to the respondent before the First Information Report was filed. Faced with some difficulty, Mr. Sanghi submitted during the course of his argument, that the respondent should be allowed to withdraw the original writ petition and he should be permitted to agitate all the contentions which he had raised before the Special Judge. According to the learned counsel, the effect of allowing the withdrawal of the writ petition, at this stage, would be that the judgment of the Single Judge of the Bombay High Court would become non est and no prejudice would be caused to any party. Taking the last submission first, it appears strange that when a petition had been filed in the High Court, judgment obtained and the losing party comes t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sanction order had been passed would show that a rather cavalier treatment has been meted out in the present case. We do not see any justification for the court making such observations in the present case because the perusal of the order of sanction does not show any legal infirmity and such remarks by the Judge were clearly uncalled for. The main thread which runs throughout the judgment is the alleged non-compliance with the principles of natural justice insofar as applicability of Section 5(1)(e) of the Act is concerned, which Section reads as follows: 5(1)(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. Interpreting this provision, the learned Judge had come to the conclusion that opportunity to satisfactorily account for must be afforded before an offence is registered. In this connection, it was observed as follows: Having regard to the procedure followed in relation to the investigation of corruption charges under Section 5(1)(e) of the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over the income. But the legal burden of proof placed on the accused is not so onerous as that of the prosecution. However, it is just not throwing some doubt on the prosecution version. The legislature has advisedly used the expression satisfactorily account . The exphasis must be on the word satisfactorily . That means the accused has to satisfy the court that that his explanation is worthy of acceptance. The burden of proof placed on the accused is an evidential burden though not a persuasive burden. The accused, however, could discharge that burden of proof on the balance of probabilities either from the evidence of the prosecution and/or evidence from the defence. (emphasis added) The aforesaid passage leaves no manner of doubt that the opportunity which is to be afforded to the delinquent officer under Section 5(1)(e) of the Act of satisfactorily explaning about his assets and resources is before the Court when the trial commences and not at an earlier stage. The conclusion arrived at by the learned Single Judge that principles of natural justice had been violated, as no opportunity was given before the registration of the case, is clearly unwarranted and contrary to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce it is open to the competent authority to grant sanction and the prosecution is entitled to produce the order of sanction. Filing of charge-sheet before the court without sanction per se is not illegal, nor a condition precedent. A perusal of the sanction order clearly indicates that the Government appears to have applied its mind to the facts placed before it and considered them and then granted sanction. No evidence has been placed before us to come to a different conclusion. Accordingly we hold that the High Court committed manifest error of law to quash the charge-sheets on those grounds. (emphasis added) The last ground which had been given by the learned Judge for quashing the prosecution is that the appellants are quality of mala fides. What is the ingredient of showing mala fide, according to the learned Judge, was that the rules of natural justice had not been followed prior to the lodging of the First Information Report. This ground, for the reasons stated hereinabove, is clearly untenable. Reference has also been made by the learned Judge to the service of the suspension order by affixation at the respondent's residence. It is to be noted that the suspensio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arge sheet was submitted on 8.2.1990. He had earlier been suspended and the suspension came to terminate with lapse of time. The present suspension has been vacated by the High Court with a direction that the respondent should be given a posting. We are of the view that taking into account the fact that the respondent is already subjected to a criminal charge, the suspension was not unjustified and the High Court should, in normal course, not have interfered. We accordingly, reverse the order of the High Court and hold that the suspension would revive. We would, however, make it clear that in case the State of Maharashtra is in a position to give a posting to the respondent, not connected with normal police work and away from the place where the trial takes place, the same may be explored. The Special Leave Petition is accordingly, disposed of. Therefore, the aforesaid order seems to suggest that the first suspension order had lapsed and with regard to the second suspension order, this Court observed that the same should not have been interfered by the High Court and it was by order of this Court that the suspension of the respondent was revived. On the facts of this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the First Information Report or the complaint and that the extra-ordinary or inherent power do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice . The position of law, in this regard, has been very succinctly stated in the abovesaid case that at the stage of quashing an First Information Report or complaint, the High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegations made therein. This is precisely what has been done by the learned Judge in the present case. The First Information Report having been lodged, the Government of Maharashtra having accorded sanction and thereafter, the charge having been filed, there was absolutely no justification for the High Court to have stopped the normal procedure of the trial being allowed to continue. It cannot be presumed that there was no application of mind when the First ..... X X X X Extracts X X X X X X X X Extracts X X X X
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