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TMI Blog2022 (9) TMI 1549X X X X Extracts X X X X X X X X Extracts X X X X ..... m Appellant s gross salary, and the deducted figure was recorded as the total disposable income with the Appellant during the check period. Hence, the loan repayment cannot be separately counted as an expenditure yet again. This is a glaring mistake. The Special Judge (Vigilance) as well as the High Court did not consider this objection on the ground that a roving inquiry is not permissible the stage of discharge. Inclusion of Rs. 1,58,562 as the value of the articles found during a search conducted in Appellant s house on 21.02.2000, twelve years after the check period of 1974 to 1988 - HELD THAT:- There is nothing to indicate, even prima facie, that these articles found during the search in the year 2000 were acquired during the check period. In the absence of any material to link these articles as having been acquired during the check period, it is impermissible to include their value in the expenditure. It is opined that the Appellant s objection about inclusion of this amount in the list of expenditure is fully justified. Unfortunately, even this objection, which did not require much scrutiny of the material on record, was not considered by the Special Judge (Vigilance) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on Act, 1988 [hereinafter referred to as the PC Act .] , on the same allegation that he possessed assets disproportionate to his known sources of income. These alleged assets were purportedly acquired during his tenure with the BSFC, and consequently, the check period in the FIR was considered from the date he joined BSFC, i.e., 19.07.1974 to the date of registration of the residential house purchased by him, i.e., 29.08.1988. The Appellant wrote a letter to the Director General of Police (Vigilance), Patna, on 18.04.2002, raising a grievance that the calculations in the FIR undervalued his income and overvalued his assets, thus depicting a false and inflated account of his expenditure. 5. Eventually a charge sheet came to be filed on 11.09.2007, i.e., about seven years after the registration of the FIR, and in fact, twenty years after the complaint on this very allegation was found to be false by the authorities. Be that as it may, the charge sheet filed against the Appellant indicated that he earned a total income of Rs. 3,01,561 and incurred an expenditure of Rs. 5,24,386 during the check period. In view of this, the charge against the Appellant was of having amassed Rs. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces, even if considering the submissions made on behalf of petitioner, for argument s sake needs proper verification attracting roving enquiry which could be permissible only during course of trial. 16. Much emphasis has been laid at the end of the petitioner relating to valuation. With the cost of repetition, the contention of the petitioner is that as the raid was conducted on 21.02.2000, on account thereof, the valuation having been shown against the article so seized at the end of the Vigilance must be considered to be in consonance with the date of recovery. That argument happens to be fallacious in the background of the fact that from the case diary, it is evident that valuation has been estimated only. There happens to be complete absence of prima facie material whereupon one could infer that the value so affixed at that very moment was prevailing rate on the alleged date of seizure. Furthermore, to ascertain genuineness on this score will again attract roving enquiry which for the present stage is found forbidden. 17. Consequent thereupon, the instant petition is found devoid of merit and is, accordingly, rejected. 8. It is against the aforesaid order tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however 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 within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (emphasis supplied) 14. In Sajjan Kumar v. Ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that the accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to entertain the prima facie view that the accused has committed the offence. (emphasis supplied) 16.1 Analysis: Without getting into too many details, we consider it to be appropriate and in fact sufficient to confine our inquiry to three heads of expenditure indicated in the chargesheet itself. This limited inquiry will also satisfy the requirements of Section 227 of the Cr.P.C. 16.2 The first objection pertains to the inclusion an amount of Rs. 55,000, recorded as the balance amount in the Appellant s bank account during the check period, and accordingly counted as an expenditure in the charge sheet. However, the Bank Passbook filed by the Appellant, which was available to the Investigation Officer and the Special Judge (Vigilance), evidently records a balance amount of only Rs. 11,998 during the check period. The difference in the figures was not explained by the Prosecuti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is based on certain mistakes that we have indicated hereinabove. It is this expenditure of Rs. 2,69,355 which is to be contrasted with the income of Rs. 3,01,561 during the check period. These facts clearly demonstrate that there is no prima facie case made out by the prosecution and therefore the Appellant was entitled to be discharged. 18. The conclusions that we have drawn are based on materials placed before us, which are part of the case record. This is the same record that was available with the Special Judge (Vigilance) when the application under Section 227 of the Cr.P.C. was taken up. Despite that, the Special Judge (Vigilance) dismissed the discharge application on the simple ground that a roving inquiry is not permitted at the stage of discharge. What we have undertaken is not a roving inquiry, but a simple and necessary inquiry for a proper adjudication of an application for discharge. The Special Judge (Vigilance) was bound to conduct a similar inquiry for coming to a conclusion that a prima facie case is made out for the Appellant to stand trial. Unfortunately, the High Court committed the same mistake as that of the Special Judge (Vigilance). 19. Apart from th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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