Judgment:
G.B. Patnaik, J.
1. The order of the learned Special Court dated 11-11-1993 in Special Court Case No. 12 of 1993 refusing the petitioner's prayer for discharge is being challenged in this writ application.
2. The petitioner is the accused before the learned Special Court and is facing a charge under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the 'Act') on the allegation that he was found to be in possession of assets disproportionate to his known sources of income to the tune of Rs. 5,49,060.31 paise which he acquired by corrupt and illegal means by abusing his official position as the Chief Minister of Orissa during the period from 9-6-1989 to 7-12-1989. Before the learned Special Court, an application was filed on behalf of the accused-petitioner under Section 227 of the Code of Criminal Procedure (hereinafter referred to as the 'Code') indicating therein that as there is no sufficient ground for proceeding against the accused, the Court shall discharge the accused. The entire basis of the petitioner's case in the application for discharge was that the prosecution has not taken into consideration one of the known sources of income, namely the income of the petitioner's wife Smt. Jayanti Patnaik, which she had drawn as a Member of Parliament and if that is taken into account, then the alleged disproportion to the tune of Rs. 5,49,060.31 paise would be easily covered and, therefore, the accused cannot be said to have committed any criminal misconduct within the meaning of Section 13(2) read with Section 13(1)(a) of the Act. It is to be stated that though the prosecution had initially alleged that the accused-petitioner had in his possession disproportionate assets to the tune of Rs. 9,45,437/- which he acquired by corrupt and illegal means by abusing his official position as the Chief Minister of Orissa, but while filing the charge-sheet, the quantum of disproportionate asserts was shown to the tune of Rs. 5,49,060.31 paise. As the Special Court is a sitting Judge of the High Court, against his order dated 11-11-1993 rejecting the application filed under Section 227 of the Code, the petitioner had approached the Supreme Court in Criminal Miscellaneous Petition No. 2140/94, but withdraw the same for filing a Criminal Revision in the High Court, as is apparent from the order of their Lordships of the Supreme Court dated 5-5-1994. An order framing a charge and rejecting the application of the accused for discharge could have been assailed in the High Court by invoking power under Section 482 of the Code, but since in the case in hand, the order is that of a Special Court who happens to be a sitting Judge of the High Court, jurisdiction of this Court under Article 227 of the Constitution has been invoked.
3. The main thrust of the petitioner's case is . that while the prosecution was aware of the fact that the wife of the accused had received a substantial sum of money as a Member of Parliament during the check period under the provisions of the Salaries, Allowances and Pension of Members of Parliament Act, 1954, as well as the Rules framed thereunder, yet, it purposely did not try to find out the same just to make out a case of disproportionate assets in the hands of the accused and, therefore, the impugned order directing framing of charge and rejecting the prayer of the accused for discharging him is liable to be interfered with by this Court. Learned Government Advocate appearing for the prosecution, on the other hand, contends that the prosecution having attempted to know the income of Smt. Jayanti Patnaik during the check period but having failed in its attempt as the Lok Sabha Secretariat did not intimate and that Smt. Patnaik having not shown the same in the income-tax return filed by her, it would be a matter for consideration during trial as to what is the amount of income and what part of it could be reasonably said to be the savings from the income and, therefore, on the materials or record, charges having been framed, the same cannot be interfered with by this Court as prima facie the materials are sufficient to frame the charge. The rival contentions require a careful examination of the powers and duties of the Court while framing charge as well as the ingredients of the offence under Section 13(1)(e) of the Act.
4. The legal position is beyond any doubt that if the materials produced by the prosecution on evaluation disclose the existence of all the ingredients constituting the alleged offence, then the Court would be entitled to frame charge on the basis of the same and at that stage the Court, required to frame charge can sift the evidence for the limited purpose of finding out whether prima facie a case is made out against the accused. At the stage, the materials produced by the prosecution are to be taken at their face value. But the question that arises for consideration is if the Court comes to the conclusion that prosecution has deliberately not taken into consideration a particular item of evidence which if taken into account will have a vital bearing even in the matter of evaluation and finding out a prima facie case, would the Court be justified in refusing to frame charge and in calling upon the prosecution to further investigate into the matter, or to frame the charge on the materials as they stood leaving the matter for trial? It is in this context, the present application has to be decided.
5. Section 13(1)(e) of the Act which corresponds to Section 5(1)(e) of the Prevention of Corruption Act of 1947, came up for consideration in a recent case of M. Krishna Reddy v. State Deputy Superintendent of Police, Hyderabad 1993 Cri LJ 308 : AIR 11993 SC 313. Their Lordships of the Supreme Court after an analysis of the provision came to hold that to substantiate a charge, the prosecution must prove the following ingredients, namely :--
(1) the prosecution must establish that the accused is a public servant;
(2) the nature and extent of the pecuniary resources or property which were found in his possession,
(3) it must be proved as to what were his known sources of income, i.e. known to the prosecution, and
(4) it must prove, quite objectively, that such resources or property found in possession of the accused were disproportionate to his known sources of income.
On the basis of the aforesaid pronouncement of the apex Court, learned Government Advocate contends with vehemence that since the income of Smt. Jayanti Patnaik was not known to the prosecution, no lacuna can be found out in the framing of charge even if that income has not been taken into consideration. But the aforesaid contention cannot be sustained in view of the fact that the prosecution was aware of the fact that Smt. Jayanti Patnaik was a Member of Parliament during the check period and while filing the charge-sheet, which has been annexed as Annexure-1 to the writ application, the prosecution did take into consideration part of the income of the wife of the petitioner, namely Smt. Jayanti Patnaik, i.e. her salaries as Member of Parliament from 14-6-1981 to 27-11-1989, as well as her income from M/s. Paurusha Publication and M/s. Paurusha Press. It further transpires that the prosecution did make a correspondence on 6th of May, 1991, with the Lok Sabha Secretariate to find out if any allowances had been received by Smt. Jayanti Patnaik as a Member of Parliament during the period in question and the dates on which the 7th and 8th Lok Sabha were in session, for calculation of the allowances, which correspondence has been annexed as Annexure-E to the counter-affidavit filed on behalf of the prosecution. To this query, the Lok Sabha Secretariat replied under Annexure-F stating therein that in view of the Report of the Committee on Privileges, a request may be made to the House stating precisely the documents required and the purpose for which they are required and the date by which they are required. But instead of acting in accordance with Annexure-F, the prosecution made another correspondence on 20th of June, 1991, with the Secretary to the Lok Sabha as per Annexure-G to the counter-affidavit, and the Secretary refused to divulge the same in view of the recommendations of the Committee on Privileges and rulings given by the Hon'ble Speaker of the Lok Sabha, which reply has been annexed as Annexure-H to the counter-affidavit. It further transpires that after filing of the charge-sheet, the prosecution has still been corresponding with the Lok Sabha and as late as on 27th of January, 1994, a letter has been written to the Lok Sabha Secretariat requiring the detailed information with regard to the facility allowances, Constituency allowances and office expenses allowances paid to Smt. Jayanti Patnaik, for the purpose of proving the same during the trial. It is to be noticed at this stage that the accused-petitioner in his application filed for discharge of the petitioner before the Special Court, had appended the Certificate of the Lok Sabha Secretariat dated 14th of September, 1992, indicating the amounts received by Smt. Jayanti Patnaik during the period to the extent of Rs. 8,36,682.50. But the learned Special Court being of the opinion that this is a matter for consideration at the trial and it cannot be held that the investigating agency withheld any relevant information and/or kept the same out of consideration knowingly, rejecting the prayer of the accused-petitioner. The learned Special Court also has been swayed away by the fact that Smt. Jayanti Patnaik had not indicated the amount received by her in her income-tax return and since the prosecution relied upon the income shown in the income-tax return, no error can be found out with the prosecution. But in view of Section 10(17) of the Income-tax Act, 1961, income by way of daily allowances received by any person by reason of him or her being a Member of Parliament or of any State Legislature or of any Committee thereof as well as any allowances received by any person by reason of his membership of Parliament under the Members of Parliament (Constituency Allowance) Rules, 1986, does not form a part of income for the purpose of computation of income of Smt. Jayanti Patnaik, and, therefore; the prosecution was not entitled to rely upon merely the income-tax return submitted by Smt. Jayanti Patnaik, nor the Special Court was justified in not taking into account the income of Smt. Jayanti Patnaik, the wife of the accused-petitioner, which she received as a Member of Parliament under the provisions of the Members of Parliament (Constituency Allowance) Rules, 1986, particularly when the aforesaid amount as per the certificate produced from the Lok Sabha Secretariat by the accused is Rs. 8,36,682.50 out of which only the prosecution took into account the salaries to the tune of Rs. 91,346.88 and did not take into account the balance amount of Rs. 7,45,335.62 paise and the disproportionate asset charged against the accused-petitioner is only to the tune of Rs. 5,49,060.31 paise. Thus a substantial amount of income of the wife of the accused has admittedly not been taken into consideration by the prosecution while filing charge-sheet and also by the learned Special Court while rejecting the application of the accused for discharge and consequently framing charge. The question which requires an examination, therefore, is whether the framing of charge itself by the learned Special Court can be said to be vulnerable and such framing of charge has caused gross miscarriage of justice enabling thereby this Court to interfere with the same or that the matter has to be gone into only during trial
6. The duty of the Court while considering framing of charge has been lucidly brought out by Ahmadi, J. in the case of Niranjan Singh Karam Singh Punjabi, Advocate v. Jitendra Bhimraj Bijja AIR 1990 SC 1962 : 1990 Cri LJ 1869. It would be appropriate for us to extract the relevant passages from the aforesaid judgment. It may be borne in mind at this stage that Section 227 of the Code confers a power on the Judge to discharge an accused at the threshold if upon consideration of the record and documents he considers that there is no sufficient ground for proceeding against the accused. The learned Judge in the aforesaid case observed :--.In other words his consideration of the record and document at that stage is for the limited purpose of ascertaining whether or not there exists sufficient grounds for proceeding with the trial against the accused. If he comes to the conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228, if not he will discharge the accused. It must be remembered that this section was introduced in the Code to avoid waste of public time over cases which did not disclose a prima facie case and to save the accused from avoidable harassment and expenditure.'
(Underlining is ours)
In Niranjan's case, referred to above, their Lordships referred to two earlier decisions of the Supreme Court in State of Bihar v. Ramesh Singh AIR 1977 SC 2018 : 1977 Cri LJ 1606 and Union of India v. Prafulla Kumar Samal AIR 1979 SC 366 : 1979 Cri LJ 154 and approved the earlier observations of the Court to the effect:--.the Judge is not merely a post office to frame charge at the behest of the prosecution but he has to exercise his judicial mind to the facts of the case in order to determine that a case for trial has been made out by the prosecution. In assessing this fact it is not necessary for the Court to enter into the pros and cons of the matter or into weighing and balancing of evidence and probabilities but he may evaluate the material to find out if the facts emerging therefrom taken at their face value establish the ingredients constituting the said offence....
Their Lordships quoted the decision made by the Supreme Court in Prafulla Kumar Samal's case, AIR 1979 SC 366 : (1979 Cri LJ 154) which we think it appropriate to extract in extenso :---
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code 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.
(2) 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.
(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 adduced 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 (sic) under the present Code is a senior and experienced Judge cannot act merely as a post office or a mouth-piece 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.
Ultimately, their Lordships in Niranjan's case held as follows :--
From the above discussion, it seems well settled that at the Sections 227-228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
Bearing in mind the aforesaid ratio of the Supreme Court, we have to examine the correctness of the order of the learned Special Court framing the charge in the case in hand. While examining the same we bear in mind the law laid down by the apex Court in the case of Supdt. and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja AIR 1980 Supreme Court 52 : 1979 Cri LJ 1390 wherein their Lordships had held :--
The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge against the accused in respect of the commission of that offence.
Usually, when a Court frames charge after hearing the parties, the law must be allowed to take its own course and self-restraint on the part of the High Court should be the rule, unless there is glaring injustice staring the Court in the face. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge and, therefore, an elaborate enquiry in sifting and weighing the materials is not to be undertaken, nor is it necessary to delve deep into various aspects, as has been indicated by their Lordships of the Supreme Court in the case of Stree Atyachar Virodhi Pari v. Dilip Nathumal Chordia (1989) 1 SCC 715. But at the same time, in a case coming under Section 13(1)(e) of the Act, if the prosecution ignores a material source of income of the accused which the prosecution was aware of and that income would have a vital bearing in the matter of framing of charge, then the evaluation made by the Court for satisfying itself that all the ingredients constituting the alleged offence exist becomes vitiated and in such a case, calling upon the accused to face trial would be a travesty of justice. In such a case framing a charge and calling upon the accused to go through the entire gamut of trial would tantamount to abuse of the process of Court and, therefore, this Court would be justified in interfering with the same. When charges are framed on the materials produced by the prosecution, in which case the High Court would be justified in interfering, no inflexible guidelines or rigid formula can be set out and it depends upon the facts and circumstances of each case. But the position is beyond pale of controversy that the High Court would be fully justified in interfering either to prevent the abuse of the process of court or to secure the ends of justice. At the stage of framing the charge, the Court is not required to minutely or meticulously go into the merits of the evidence collected by the prosecution and consider in details and weigh in a sensitive balance whether the facts, if proved would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not to be applied at the stage of deciding the matter under Section 227 or 228 of the Code and the Court is not to see whether there is sufficient ground for conviction of the accused or the trial is sure to end in conviction. If there is strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused and, therefore, the consideration to be made by the Court at the stage of framing charge would depend upon the facts of each case and it is difficult to lay down a rule of universal application. But if the Court is satisfied, considering the question as to whether a charge under Section 13(1)(a) of the Act is to be framed or not, that a vital source of income has not been taken into account by the prosecution, then the Court will be justified in refusing to frame charge against the accused rather than to call upon the accused to face the trial. As has been held by the apex Court in M. Krishna Reddy's case (1993 Cri LJ 308 : (AIR 1993 SC 313)) that as to what were the 'know.nl sources of income' means known to the prosecution and the prosecution in the present case was fully aware of the fact that Smt. Jayanti Patnaik as a Member of Parliament during the check period had received a substantial amount as her allowances and perquisites under the provisions of the Members of Parliament (Constituency Allowance) Rules, 1986, which was not a part of income for the purpose of the Income-tax Act. The prosecution did attempt to find out the income, but the correspondence between the Lok Sabha Secretariat and the prosecution indicates that the prosecution did not proceed in accordance with the guidelines indicated by the Lok Sabha Secretariat to find out the income in question and no attempt has been made in that respect. It is further established that after framing of charge, the prosecution has again made correspondence with the Lok Sabha to get the information in question. The accused when produced the Certificate from the Lok Sabha Secretariat along with the application for discharge, the prosecution never denied or doubted the authenticity of the same. But the learned Special Court proceeded with the matter on the basis that this should be gone into in the trial. Smt. Jayanti Patnaik had been examined by the prosecution during investigation and in her statement she had indicated that all her pay and allowances received by her from the Lok Sabha were being credited to her account in the State Bank of India, Main Branch, New Delhi, and the details of pay and allowances received by her from the Lok Sabha can be made available by the Parliament Secretariat or can be made available from the account at the State Bank of India, Main Branch, New Delhi. The prosecution until filing of chargesheet never attempted seriously to get the details from the Lok Sabha Secretariat and notwithstanding the letter from the Lok Sabha Secretariat that correspondence should be made to the Lok Sabha through the Speaker, no such correspondence had been made. The charge-sheet submitted by the prosecution further indicates that the Bank balance in the name of Smt. Jayanti Patnaik was taken into account for computing the assets of the accused -- her husband Shri J. B. Patnaik. But the deposits made in the Bank which according to the statement of Smt. Jayanti Patnaik were the allowances received by her from Parliament had not been taken into account while computing the income of the wife of the accused which she had received as the Member of Parliament during the check-period. It is no doubt true that what part of the said income can be taken to be the savings and what part of that can be taken as expenses would be a matter for evidence and the prosecution will be well within its power to take a reasonable view of the matter as a reasonable man. But total non-consideration of the said income which is a sum of Rs. 7,45,335.62 paise, as against the disproportionate assets charged against the accused to the tune of Rs. 5,49,060.31 paise tantamounts to ignoring a material item of evidence and as such a material ingredient of the offence. When the accused in his application under Section 228 had appended the Certificate of the Lok Sabha Secretariat and the prosecution did not deny the authenticity of the same, the Special Court failed to discharge its obligation of evaluating the materials on record to find out if the facts emerging taken at their face value establish the ingredients constituting the offence under Section 13(1)(a) of the Act. When a source of income of the accused or his wife was known to the prosecution and the prosecution has failed to take that source into consideration and that income would have a vital bearing on the framing of charge, the Court would be fully justified in refusing to frame the charge leaving it open to the prosecution to further investigate into the matter and if materials justify, to file a fresh charge sheet. Learned Government Advocate in course of his submissions is not in a position to refuse the assertion of the petitioner that the income of the petitioner's wife Smt. Jayanti Patnaik from the Lok Sabha during the check period has not been taken into account excepting her salary as reflected in the income-tax return. He accordingly contends that instead of quashing the charge framed, this Court can direct the prosecution to further investigate into the matter and file additional materials in support of the charge. But we are unable to accept this contention of the learned Government Advocate. This Court is only concerned with the legality of the order of the learned Special Court framing charge on the materials on record. If the Court is satisfied that the order is vulnerable and has caused gross miscarriage of justice, the Court can interfere with the order. But our interference with the order framing charge does not take away the power of the prosecution to further investigate into the matter and get the income of Smt. Jayanti Patnaik which she received from the Parliament during the check period and thereafter proceed with the matter in accordance with law.
7. In the premises, as aforesaid, since admittedly the income of Smt. Jayanti Patnaik as a Member of Parliament during the period from 14-6-1981 to 27-11-1989 excepting her salary has not been taken into account by the prosecution in computing the income of the accused which amount is Rs. 7,45,335.62 as is apparent from the Certificate of the Lok Sabha Secretariat which was produced before the learned Special Court, and since the prosecution though knew the source of income but did not proceed in accordance with law to get the amount which Smt. Jayanti Patnaik received and did not proceed with the matter in accordance with the decision of the Privilege Committee which was communicated to the prosecution by the Lok Sabha Secretariat in its letter dated 10th of June, 1991 (annexed as Annexure-F to the counter-affidavit of the opposite party filed in this Court), and since subsequent to the filing of the charge-sheet and framing of charge, the prosecution has again started correspondence in January, 1994, with the Lok Sabha Secretariat to get the amount which Smt. Jayanti Patnaik had received from the Lok Sabha during the relevant period, and the disproportionate asset charged against the accused-petitioner is only to the tune of Rs. 5,49,060.31 paise, we have no hesitation to come to the conclusion that the impugned order of the learned Special Court dated 11-11-1993 refusing the petitioner's prayer to discharge the accused and the consequential order directing framing of charge under Section 13(1)(a) of the Act has become vulnerable and the learned Special Court has failed to exercise its jurisdiction vested under Sections 227 and 228 of the Code, as indicated by the apex Court in Niranjan's case (AIR 1990 SC 1962), referred to supra. The basic infirmity by way of non-consideration of a material source of income of the wife of the accused while she was the Member of the Lok Sabha during the relevant period has not been borne in mind by the learned Special Court while rejecting the prayer of the accused. In a case where charge has been framed calling upon the accused to explain the disproportionate assets in his hands to the extent of Rs. 5,49,060.31 paise, if the income during the relevant period amounting to Rs. 7,45,335.62 paise is not at all taken into account, the prosecution cannot be absolved of its liability on the ground that it was not aware of the aforesaid amount, particularly in the context of what has been stated earlier and the correspondence between the Lok Sabha Secretariat and the prosecution and consequently, there has been gross miscarriage of justice and the accused would be grossly prejudiced if the matter is not interfered with at this stage and the accused is called upon to face the trial. We accordingly are of the considered opinion that the impugned order of the learned Special Court is wholly unsustainable and we, therefore, quash the said order dated 11-11-1993 and hold that the order dated 16-11-1993 framing the charge against the accused cannot be sustained. The criminal prosecution so far as the accused-petitioner is concerned is accordingly quashed. Needless to mention that the prosecution would be fully entitled to investigate further into the matter and if on such investigation and considering the income of Smt. Jayanti Patnaik from the Lok Sabha Secretariat during the relevant period it comes to the conclusion that the accused has assets disproportionate to his known sources of income, then it would be free to file a fresh charge sheet against the accused-petitioner.
8. The writ application is accordingly allowed.
P.C. Naik, J.
9. I agree.