9911796707
TMI Blog2024 (12) TMI 1186X X X X Extracts X X X X X X X X Extracts X X X X ..... ng upon documents other than those referred to in Sections 239 and 240 CrPC; nor would it be justified in invoking its inherent jurisdiction under Section 482 CrPC to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course.' A perusal of the impugned judgment would reveal the nature of the exercise undertaken for passing the impugned judgment. In fact, the aforesaid observation was made after going through the documents filed by the respondent before the High Court. In this context, it is also to be noted that the High Court has also referred to the contentions of the respondent, including the one that for purchasing land at Bhubaneswar, she had borrowed an amount of Rs.2.5 lakhs from her father. After such exercise, it was held by the High Court that there is no clinching material showing that the appellant abetted her husband or made any conspiracy or instigated him in the alleged acquisition of disproportionate assets. This observation itself would go against the very scope of Section 239, Cr. P.C. as at the stage of consideration of a petition for discharge what is to be considered whether there is a prima facie c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst Sh. Anil Kumar Sethi, the husband of the respondent, under Section 13(1)(e) punishable under Section 13(2) of the PC Act. In the course of the inquiry, it was found that he is a public servant working as Assistant Engineer, Rural Works Sub-Division, Kakatpur, District Puri and was in possession of disproportionate assets to his known source of income to the tune of Rs. 40,54,561/-. He was unable to account for such resources for the disproportionate income and therefore, found him liable to be prosecuted under the aforesaid sections of the PC Act. During the course of investigation, it was found that the said Anil Kumar Sethi entered in service as Stipendiary Engineer in the year 1993 in Orissa State Housing Board Corporation and worked there till March, 1997. Thereafter, he joined as Stipendiary Engineer in R.D. Department in March, 1997 and later became a regular Assistant Engineer from January, 1999. In the year 1996 he married the respondent. Though the respondent, the wife of the said Anil Kumar Sethi, claimed that she had been filing Income Tax Returns, they could not be found in the IT Department, though the Income Tax Authorities were able to furnish copies of the Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . While the appellant relies on the same to support the contention that offence under Section 13(1)(e) of the PC Act could be abetted by a non-public servant and the only mode of prosecuting such an offender is through trial as envisaged in the PC Act, the respondent would rely on the very self-same decision to contend that merely because some of the disproportionate assets stand in the name of non-public servant, without any element of abetment, the couple could not be asked to face the trial along with the public servant on the ground of their relationship. In short, going by the respondent, there is no material to support the charge under Section 109, for abetting the husband Sri Anil Kumar Sethi to commit the aforesaid offence under the PC Act. 6. It is contended by the learned counsel for the appellant that though the respondent claimed that she was an income tax assessee and had filed tax returns, she did not furnish the tax return receipts and despite earnest efforts, they could not be found in the IT Department. It is the further submission of the appellant that having found grounds to proceed against the respondent, and a prima facie case made out against her and her husb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess since 2003-2004. It is also her case that she purchased the land at Bhubaneswar after borrowing Rs.2.5 lakhs from her father. In short, it is the contention made on behalf of the respondent that the Investigating Officer had not conducted investigation to find out the source of income of the respondent as well as to obtain the Income Tax Returns filed by her. 9. Before considering the rival contentions on merits in order to consider the sustainability or otherwise of the impugned judgment, we think it only appropriate to consider certain relevant position of law in relation to certain aspects involved in the case on hand. We will firstly consider the scope of Section 239, Cr. P.C. In the decision in R.S. Nayak v. A.R. Antulay Anr. ( 1986 ) 2 SCC 716; 1986 INSC 86 , this Court held that the obligation to discharge the accused under Section 239 arises only when the Magistrate considers the charge against the accused to be groundless. In the decisions in State of Delhi v. Gyan Devi and Ors. ( 2000 ) 8 SCC 239; 2000 INSC 491 , this Court held thus: - 7. In the backdrop of the factual position discussed above, the question formulated earlier arises for our consideration. The legal p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formidable compulsions justify such a course. We hasten to add even in such exceptional cases the High Court can look into only those documents which are unimpeachable and can be legally translated into relevant evidence. 8. Apart from the infirmity in the approach of the High Court in dealing with the matter which we have already noticed, we further find that instead of adverting to and confining its attention to the documents referred to in Sections 239 and 240 CrPC the High Court has dealt with the rival contentions of the parties raised through their respective affidavits at length and on a threadbare discussion thereof passed the impugned order. The course so adopted cannot be supported; firstly, because finding regarding commission of an offence cannot be recorded on the basis of affidavit evidence and secondly, because at the stage of framing of charge the Court cannot usurp the functions of a Trial Court to delve into and decide upon the respective merits of the case. ( underline supplied ) 12. In short, while reiterating the position that in a prosecution, presumption of innocence should be in favour of the accused, it has to be said that at the stage of framing charge, e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... through the documents filed by the respondent before the High Court. In this context, it is also to be noted that the High Court has also referred to the contentions of the respondent, including the one that for purchasing land at Bhubaneswar, she had borrowed an amount of Rs.2.5 lakhs from her father. After such exercise, it was held by the High Court that there is no clinching material showing that the appellant abetted her husband or made any conspiracy or instigated him in the alleged acquisition of disproportionate assets. This observation itself would go against the very scope of Section 239, Cr. P.C. as at the stage of consideration of a petition for discharge what is to be considered whether there is a prima facie case and certainly, the endeavour cannot be to find whether clinching materials are there or not. In the common parlance the word clinch means point or circumstance that settles the issue. We have no hesitation to hold that such meticulous consideration for presence or absence of clinching material is beyond the scope of power of the Court while considering the question of discharge under Section 239, Cr. P.C. as also while considering the question of quashing of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
