9911796707
TMI Blog2019 (9) TMI 1659X X X X Extracts X X X X X X X X Extracts X X X X ..... Virendra Kumar Agarwal and Shri Virendra Kumar Agarwal were charged under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 ('P.C. Act' for short) and Section 109 of IPC. The respondent No. 1 in SLP (Crl.) D.No. 23350/2017 is the wife of the respondent No.2. They are charged as accused No. 2 and accused No. 1 respectively and are proceeded against in CBI, ACB Special Case No. 21/2010. In the said proceedings both the accused filed separate applications seeking their discharge. The application of accused No. 1 Shri Virendra Kumar Agarwal was registered as Exhibit 13 while that of accused No. 2 Smt. Pramila Virendra Kumar Agarwal was registered as Exhibit 20. The Special Court on consideration of the application for discharge has allowed the application of accused No. 1 - Shri Virendra Kumar Agarwal through the order dated 15.01.2013 and discharged him from the offences charged against him under FIR No. RC 49(A)/2007:CRI:ACE:Mumbai. Insofar as the application filed by accused No. 2 Smt. Pramila Virendra Kumar Agarwal the Special Court through the order dated 22.02.2013 had rejected the application. 5. In that background the appellant herein - CBI cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een done presently since the contention was of defective sanction and not that the proceedings was without sanction. It is his case that the proceedings were initiated against the private respondents herein based on information received and when the investigation revealed disproportionate assets the charge sheet was filed in that regard. The correctness of the charge is to be established with evidence during trial and in that circumstance the discharge granted based on certain assumptions is not justified. 8. The learned senior counsel for the private respondents on the other hand sought to contend that the initial order of discharge of accused No. 1 by the Special Court and the subsequent order of discharge of accused No. 2 by the High Court is on proper consideration and the same do not call for interference. It is contended that though the prosecution has sought to charge the private respondents herein alleging that they had during the check period i.e. 01.01.1994 to 21.10.2007 accumulated assets to the tune of Rs. 1,06,89,194/disproportionate to the known source of income, the agency has wrongly clubbed the assets of both the private respondents merely because they are husband ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failure to explain or account for the same would amount to an offence. The said decision was also relied upon since it was held therein that before registration of offence an opportunity ought to have been given to the accused to explain the source of funds for acquiring and possessing the assets. Having taken note of the same the learned Judge of the High Court has also taken note of the submission of the learned Special Prosecutor who had pointed out that during the investigation the accused were called and their statements were recorded. However, not being satisfied with the submission to that effect, the learned Judge was of the opinion that the Investigating Officer ought to have given specific opportunity to the accused for submitting an explanation. Thus, having considered the same to be a lapse it was held that if sanctions for prosecutions were sought in that circumstance, the Sanctioning Authority would not have an opportunity to see the explanation and, therefore, sanction also would be defective. 11. Firstly, it is to be taken note that as contended by the prosecution, in the course of the investigation the accused have been summoned and their statements have been reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n could have been considered only during trial since essentially the conclusion reached by the High Court is with regard to the defective sanction since according to the High Court, the procedure of providing opportunity for explanation was not followed which will result in the sanction being defective. In that regard, the decision in the case of Dinesh Kumar vs. Chairman, Airport Authority of India, (2012) 1 SCC 532 relied upon by the learned Additional Solicitor General would be relevant since it is held therein that there is a distinction between the absence of sanction and the alleged invalidity on account of nonapplication of mind. The absence of sanction no doubt can be agitated at the threshold but the invalidity of the sanction is to be raised during the trial. In the instant facts, admittedly there is a sanction though the accused seek to pick holes in the manner the sanction has been granted and to claim that the same is defective which is a matter to be considered in the trial. 14. In the above background, the impugned order would indicate that the High Court has not adverted to the charge made against the accused wherein the charge against the accused No. 2 is also of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
