Sri Mahesh Chandra Vs. State of U.P. and anr. - Court Judgment

Excerpt:
- - in anil kumar's case reported in air 1980 sc 52 :(1979 cri lj 1390), it was observed by the supreme court that 'the standard test, proof arid judgment which is needed for finding of a guilt or otherwise is not necessary for framing of charge at this stage, even a strong suspicion founded upon materials before the magistrate may justify framing of charge.orderv.n. mehrotra, j.1. this petition has been filed under section 482, cr.p.c, for quashing the entire proceedings along with the charge framed in criminal case no. 1 of 1990, state v. mahesh chandra pending in the court of special judge, anti corruption (e), dehradun.2. the facts of the case, as appear from the material on record, are that the present applicant mahesh chandra was posted as chief engineer, national hydro-electric project corporation, tanakpur, district nainital (u.p.) some information was allegedly received by the c.b.i. to the effect that the petitioner was a corrupt officer and he, by corrupt and illegal means or by otherwise abusing his official position as a public servant, had acquired movable and immovable assets in his own name and in the name of his family members dependent upon him disproportionate to known source of his income. a case was registered and after investigation charge sheet was submitted by the deputy superintendent of police, c.b.i. new delhi against the applicant. it was asserted that the accused had, while functioning as the superintending engineer and subsequently as the chief engineer at different places, mentioned in the charge sheet during the period from 17-4-1980 to 6-4-1987, committed the offence of criminal misconduct as he, on 6-4-1987, was found in possession of assets which were disproportionate to his known sources of income to the tune of rs. 2,23,021,64 p. it was asserted that the accused thus committed the offence punishable under section 5(2) read with section 5(1) (e) of the prevention of corruption act, 1947.3. the learned special judge, anti-corruption u.p. (east), dehradun framed charge on 17-1-1992 against the accused in respect of the above offence.4. the present petition has been filed for quashing the entire proceedings, including the charge framed by the special judge. the contention by the petitioner is that the material which has been collected by the c.b.i. does not disclose the commission of any offence. it is further contended that the investigating agency was not justified in taking an arbitrary check period in order to come to the conclusion that the applicant was in possession of assets disproportionate to his known sources of income. it is further contended that the assets, mentioned by the investigating agency include indira vikash patras valued at rs. 2,00,000/ -. the same did not belong to the petitioner but belong to his son rajiv sharma, who was major and was carrying on his own business. it is contended that it was wrong to take into account these indira vikas patras and other assets held by the major son of the petitioner. it is lastly contended that the prevention of corruption act, 1947 was repealed by section 30 of the prevention of corruption act, 1988, hence the special judge concerned could not have framed charge under section 5(1)(e) of the prevention of corruption act, 1947 against the petitioner and thus the charge framed under the repealed act was invalid.5. the petitioner has filed his affidavits along with copies of documents in support of his assertions. counter affidavit along with annexures has been filed on behalf of opposite party no. 2.6. i have heard learned counsel for the petitioner and also the learned counsel for opposite party no. 2, who is representing the c.b.i. and have further heard the learned a.g. a., representing the state of u.p.7. the first question to be considered in this petition is as to whether the learned special judge could frame charge against the petitioner under the provisions of the prevention of corruption act, 1988, or under the provisions of the prevention of corruption act, 1947. it is not disputed that the prevention of corruption act, 1988 repealed the earlier act of 1947. sub-section (1) of section 30 of this act provides 'the prevention of corruption act, 1947 (2 of 1947) and the criminal law amendment act, 1952 (46 of 1952) are hereby repealed.' the question is as to what will be the effect of this appeal on the present proceedings. it is not disputed that when the case was registered against the petitioner and the investigation was conducted, the subsequent act i.e. act no. 49 of 1988 had not been enacted. obviously, the case could have been registered under act 2 of 1947 and the investigation could also have been conducted under that act. in the present case, actually the charge sheet was submitted before the act 49 of 1988 had come into force. in view of this matter, can it be said that the trial before the special judge could proceed under the new act and not under the old act.for this purpose, reference should be made to sub-section (2) of section 30 of the act which provides that 'notwithstanding such repeal, but without prejuice to the application of section 6 of the general clauses act, 1897 (10 of 1897), anything done or any action taken or purported to have been done or taken under or in pursuance of the acts so repealed shall, in so far as it is not inconsistent with the provisions of this act, be deemed to have been done or taken under or in pursuance of the corresponding provision of this act.' thus this repealing and saving section does not, in any way, affect the applicability of section 6 of the general clauses act, 1987. section 6 of the general clauses act provides as under :--6. effect of repeal.-- where this act, or any central act or regulation made after the commencement of this act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not :--(a) to (b) ...(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment and any such penalty, forfeiture or punishment may be impose as if the repealing act or regulation had not been passed.8. thus, even after the repeal of act no. 2 of 1947 any investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing act or regulation had not been passed. therefore, though the act no. 2 of 1947 was not in force when the learned special judge framed the charge against the petitioner, still there was no bar against proceeding in accordance with the repealed act and the charge could be framed by the court concerned under that act. in the case of ramniklal nanalal v. shah pranlal nanchand, air 1952 kutch 74 : (1952 cri lj 1482), a contempt of court was committed when the contempt of courts act, 1926 was in force. the act of 1926 was repealed by the contempt of courts act, 1952. the question was whether action could be taken for the contempts committed prior to the commencement of the new act, or not, and it was held that action would be taken under the old act, even after its repeal. in a case reported in 1967 madras lw (crl) 11, a contravention of section 12(1) of the foreign exchange act was committed prior to the amendment of section 23-a of the foreign exchange regulation act in 1963. it was held that the repeal of the sea customs act, 1978, by the customs act 1962 does not affect the position and the prosecution for contravention of section 12(1) of the foreign exchange act can be, launched after 1964 by virtue of section 6(e) of the general clauses act, 1897.9. considering the abovementioned facts, it cannot be said that the learned special judge was wrong in framing charge under section 5(1)(e) of act no. 2 of 1947 merely because the act had been repealed by the new act of 1988 before the date of framing of charge.10. now coming to the contention that the investigating agency could not choose the check period to find out the assets of the petitioner. it is contended that the petitioner was in service for a very long period and so the entire period should have been considered. the learned counsel for the opposite party no. 2, on the other hand, argued that the investigating agency could choose a check period which is a reasonable period, to find out the assets held by the petitioner disproportionate to his known sources of income. in the present case, the investigating agency has taken the period from 17-4-1980 to 6-4-1987. the reason for the same is said to be that the petitioner was promoted as superintending engineer in april, 1980 and the search of his premises was conducted on 6-4-1987. it is asserted that most of the assets were acquired by the petitioner during this period. it is argued that according to the decisions of the courts, it is not necessary to take the entire service period as check period for the purposes of investigation. the argument by the learned counsel for the opposite party no. 2 is supported by the decision of the supreme court in the case of state of maharashtra v. pollonji darabshaw daruwalla, air 1988 sc 88 : (1988 cri lj 183). it was held in this case that in order to establish that a public servant is in possession of pecuniary resources or property disproportionate to his known sources of income, it is not imperative that the period of recknoning be spread out for the entire stretch of anterior service of the public servant. it was also observed that the choice of the period must necessarily be determined by the allegations of fact on which the prosecution is founded and rests. however, the period must be such as to enable a true and comprehensive picture of the known sources of income and the pecuniary resources and property in possession of the public servant either by himself or through any other person on his behalf which are alleged to be so disproportionate. in the facts and circumstances of that case, the supreme court observed that a ten years period cannot be said to be incapable of yielding such a true and comprehensive picture.11. in the circumstances, it cannot be at this stage, said that the check period cannot give true and comprehensive picture in the present case.12. now coming to the assertion that there was no sufficient material on the basis of which any charge could be framed against the petitioner. it is to be remembered that while framing the charge, the court is not to consider the evidence meticulously. it has not to consider as to whether a conviction can be based on the material placed before it at that stage. it should also be remembered that inherent jurisdiction under section 482, cr.p.c. has to be exercised sparingly and with circumspection. in exercising that jurisdiction the high court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by the evidence or not. that is the function of the trial court when the evidence comes before it.13. in the case of municipal corporation of delhi v. r.k. rohtagi, (1983) 1 scc 1 : (air 1983 sc 67) it was observed by the supreme court that it is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. in the case of municipal corporation of delhi v. p.d. jhunjunwala (1983) 1 scc 9 : (1983 cri lj 172), it was observed that as to what would be the evidence against the respondents is not a matter to be considered at this stage and would have to be proved at the trial. in anil kumar's case reported in air 1980 sc 52 : (1979 cri lj 1390), it was observed by the supreme court that 'the standard test, proof arid judgment which is needed for finding of a guilt or otherwise is not necessary for framing of charge at this stage, even a strong suspicion founded upon materials before the magistrate may justify framing of charge.14. at the stage of framing of charge, the judge can sift and weigh the evidence for the purposes of finding whether prima facie case has been made out. it is only when he comes to the conclusion that there was no sufficient ground for proceeding against the accused, that the accused can be discharged under section 227, cr.p.c. however, in case there is a ground for presuming that the accused has committed an offence, then a charge under section 228, cr.p.c. should be framed.15. in the case of stree atyachar virodhi parishad v. dilip nathumal chordia, 1989 (1) jt sc 247, it was observed by the supreme court that in fact section 227 itself contains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. it provides that the judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused. the 'ground' in the context is not a ground for conviction, but a ground for putting the accused on trial. 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. the court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. nor it is necessary to delve deep into various aspects. all that the court has to consider is whether the evidentiary material on record, if generally accepted, would reasonably connect the accused with the crime. no more need be enquired into.16. in the present case, it is contended by the investigating agency that the petitioner was found in possession of assets worth rs. 2,25,000/- and odd disproportionate to his known sources of income. this amount includes the indira vikas patras worth rs. two lacs which were found in the locker of rajeev sharma, who is the son of petitioner. the prosecuting agency has asserted that rajeev sharma was unemployed and was not carrying on any business and, therefore, he was fully dependent on his father (petitioner). it is further contended that the petitioner had claimed medical reimbursement in respect of his son rajeev sharma asserting that his son was dependent on him. the petitioner has, on the other hand, asserted that rajeev sharma, was not dependent on him but was carrying on his own business and he has separate source of income: in my view, the question as to whether the indira vikas patras worth rupees two lacs found in the bank locker of rajeev sharma were actually held by him on behalf of the petitioner or the same belonged to him and wee purchased from his own sources of income, can be decided only on the basis of evidence which may be led during the trial. this court cannot while dealing with the petition under section 482, cr.p.c. come to any conclusion on this point, nor can give any finding in respect of the same.17. on a consideration of material placed before me, i am unable to come, to the conclusion that there was no material on the basis of which the learned special judge could proceed against the petitioner and frame the; charge against him.18. in the result, this petition is dismissed. it is, however, made clear that any observation made in this judgment will not, in any way, affect the trial on merits.

Judgment:
ORDER

V.N. Mehrotra, J.

1. This petition has been filed under Section 482, Cr.P.C, for quashing the entire proceedings along with the charge framed in Criminal Case No. 1 of 1990, State v. Mahesh Chandra pending in the Court of Special Judge, Anti Corruption (E), Dehradun.

2. The facts of the case, as appear from the material on record, are that the present applicant Mahesh Chandra was posted as Chief Engineer, National Hydro-Electric Project Corporation, Tanakpur, district Nainital (U.P.) Some information was allegedly received by the C.B.I. to the effect that the petitioner was a corrupt officer and he, by corrupt and illegal means or by otherwise abusing his official position as a public servant, had acquired movable and immovable assets in his own name and in the name of his family members dependent upon him disproportionate to known source of his income. A case was registered and after investigation charge sheet was submitted by the Deputy Superintendent of Police, C.B.I. New Delhi against the applicant. It was asserted that the accused had, while functioning as the Superintending Engineer and subsequently as the Chief Engineer at different places, mentioned in the charge sheet during the period from 17-4-1980 to 6-4-1987, committed the offence of criminal misconduct as he, on 6-4-1987, was found in possession of assets which were disproportionate to his known sources of income to the tune of Rs. 2,23,021,64 p. It was asserted that the accused thus committed the offence punishable under Section 5(2) read with Section 5(1) (e) of the Prevention of Corruption Act, 1947.

3. The learned Special Judge, Anti-Corruption U.P. (East), Dehradun framed charge on 17-1-1992 against the accused in respect of the above offence.

4. The present petition has been filed for quashing the entire proceedings, including the charge framed by the Special Judge. The contention by the petitioner is that the material which has been collected by the C.B.I. does not disclose the commission of any offence. It is further contended that the investigating agency was not justified in taking an arbitrary check period in order to come to the conclusion that the applicant was in possession of assets disproportionate to his known sources of income. It is further contended that the assets, mentioned by the investigating agency include Indira Vikash Patras valued at Rs. 2,00,000/ -. The same did not belong to the petitioner but belong to his son Rajiv Sharma, who was major and was carrying on his own business. It is contended that it was wrong to take into account these Indira Vikas Patras and other assets held by the major son of the petitioner. It is lastly contended that the Prevention of Corruption Act, 1947 was repealed by Section 30 of the Prevention of Corruption Act, 1988, hence the Special Judge concerned could not have framed charge under Section 5(1)(e) of the Prevention of Corruption Act, 1947 against the petitioner and thus the charge framed under the repealed Act was invalid.

5. The petitioner has filed his affidavits along with copies of documents in support of his assertions. Counter affidavit along with annexures has been filed on behalf of opposite party No. 2.

6. I have heard learned counsel for the petitioner and also the learned counsel for opposite party No. 2, who is representing the C.B.I. and have further heard the learned A.G. A., representing the State of U.P.

7. The first question to be considered in this petition is as to whether the learned Special Judge could frame charge against the petitioner under the provisions of the Prevention of Corruption Act, 1988, or under the provisions of the Prevention of Corruption Act, 1947. It is not disputed that the Prevention of Corruption Act, 1988 repealed the earlier Act of 1947. Sub-section (1) of Section 30 of this Act provides 'the Prevention of Corruption Act, 1947 (2 of 1947) and the Criminal Law Amendment Act, 1952 (46 of 1952) are hereby repealed.' The question is as to what will be the effect of this appeal on the present proceedings. It is not disputed that when the case was registered against the petitioner and the investigation was conducted, the subsequent Act i.e. Act No. 49 of 1988 had not been enacted. Obviously, the case could have been registered under Act 2 of 1947 and the investigation could also have been conducted under that Act. In the present case, actually the charge sheet was submitted before the Act 49 of 1988 had come into force. In view of this matter, can it be said that the trial before the Special Judge could proceed under the new Act and not under the old Act.

For this purpose, reference should be made to Sub-section (2) of Section 30 of the Act which provides that 'notwithstanding such repeal, but without prejuice to the application of Section 6 of the General Clauses Act, 1897 (10 of 1897), anything done or any action taken or purported to have been done or taken under or in pursuance of the Acts so repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under or in pursuance of the corresponding provision of this Act.' Thus this repealing and saving section does not, in any way, affect the applicability of Section 6 of the General Clauses Act, 1987. Section 6 of the General Clauses Act provides as under :--

6. Effect of repeal.-- Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not :--

(a) to (b) ...

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment and any such penalty, forfeiture or punishment may be impose as if the repealing Act or Regulation had not been passed.

8. Thus, even after the repeal of Act No. 2 of 1947 any investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed. Therefore, though the Act No. 2 of 1947 was not in force when the learned Special Judge framed the charge against the petitioner, still there was no bar against proceeding in accordance with the repealed Act and the charge could be framed by the court concerned under that Act. In the case of Ramniklal Nanalal v. Shah Pranlal Nanchand, AIR 1952 Kutch 74 : (1952 Cri LJ 1482), a contempt of court was committed when the Contempt of Courts Act, 1926 was in force. The Act of 1926 was repealed by the Contempt of Courts Act, 1952. The question was whether action could be taken for the contempts committed prior to the commencement of the new Act, or not, and it was held that action would be taken under the old Act, even after its repeal. In a case reported in 1967 Madras LW (Crl) 11, a contravention of Section 12(1) of the Foreign Exchange Act was committed prior to the amendment of Section 23-A of the Foreign Exchange Regulation Act in 1963. It was held that the repeal of the Sea Customs Act, 1978, by the Customs Act 1962 does not affect the position and the prosecution for contravention of Section 12(1) of the Foreign Exchange Act can be, launched after 1964 by virtue of Section 6(e) of the General Clauses Act, 1897.

9. Considering the abovementioned facts, it cannot be said that the learned Special Judge was wrong in framing charge under Section 5(1)(e) of Act No. 2 of 1947 merely because the Act had been repealed by the new Act of 1988 before the date of framing of charge.

10. Now coming to the contention that the investigating agency could not choose the check period to find out the assets of the petitioner. It is contended that the petitioner was in service for a very long period and so the entire period should have been considered. The learned counsel for the opposite party No. 2, on the other hand, argued that the investigating agency could choose a check period which is a reasonable period, to find out the assets held by the petitioner disproportionate to his known sources of income. In the present case, the investigating agency has taken the period from 17-4-1980 to 6-4-1987. The reason for the Same is said to be that the petitioner was promoted as Superintending Engineer in April, 1980 and the search of his premises was conducted on 6-4-1987. It is asserted that most of the assets Were acquired by the petitioner during this period. It is argued that according to the decisions of the Courts, it is not necessary to take the entire service period as check period for the purposes of investigation. The argument by the learned counsel for the opposite party No. 2 is supported by the decision of the Supreme Court in the case of State of Maharashtra v. Pollonji Darabshaw Daruwalla, AIR 1988 SC 88 : (1988 Cri LJ 183). It was held in this case that in order to establish that a public servant is in possession of pecuniary resources or property disproportionate to his known sources of income, it is not imperative that the period of recknoning be spread out for the entire stretch of anterior service of the public servant. It was also observed that the choice of the period must necessarily be determined by the allegations of fact on which the prosecution is founded and rests. However, the period must be such as to enable a true and comprehensive picture of the known sources of income and the pecuniary resources and property in possession of the public servant either by himself or through any other person on his behalf which are alleged to be so disproportionate. In the facts and circumstances of that case, the Supreme Court observed that a ten years period cannot be said to be incapable of yielding such a true and comprehensive picture.

11. In the circumstances, it cannot be at this stage, said that the check period cannot give true and comprehensive picture in the present case.

12. Now coming to the assertion that there was no sufficient material on the basis of which any charge could be framed against the petitioner. It is to be remembered that while framing the charge, the court is not to consider the evidence meticulously. It has not to consider as to whether a conviction can be based on the material placed before it at that stage. It should also be remembered that inherent jurisdiction under Section 482, Cr.P.C. has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by the evidence or not. That is the function of the trial court when the evidence comes before it.

13. In the case of Municipal Corporation of Delhi v. R.K. Rohtagi, (1983) 1 SCC 1 : (AIR 1983 SC 67) it was observed by the Supreme Court that it is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In the case of Municipal Corporation of Delhi v. P.D. Jhunjunwala (1983) 1 SCC 9 : (1983 Cri LJ 172), it was observed that as to what would be the evidence against the respondents is not a matter to be considered at this stage and would have to be proved at the trial. In Anil Kumar's case reported in AIR 1980 SC 52 : (1979 Cri LJ 1390), it was observed by the Supreme Court that 'the standard test, proof arid judgment which is needed for finding of a guilt or otherwise is not necessary for framing of charge at this stage, even a strong suspicion founded upon materials before the magistrate may justify framing of charge.

14. At the stage of framing of charge, the Judge can sift and weigh the evidence for the purposes of finding whether prima facie case has been made out. It is only when he comes to the conclusion that there was no sufficient ground for proceeding against the accused, that the accused can be discharged under Section 227, Cr.P.C. However, in case there is a ground for presuming that the accused has committed an offence, then a charge under Section 228, Cr.P.C. should be framed.

15. In the case of Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia, 1989 (1) JT SC 247, it was observed by the Supreme Court that in fact Section 227 itself contains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. It provides that the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused. The 'ground' in the context is not a ground for conviction, but a ground for putting the accused on trial. 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. The Court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor it is necessary to delve deep into various aspects. All that the Court has to consider is whether the evidentiary material on record, if generally accepted, would reasonably connect the accused with the crime. No more need be enquired into.

16. In the present case, it is contended by the investigating agency that the petitioner was found in possession of assets worth Rs. 2,25,000/- and odd disproportionate to his known sources of income. This amount includes the Indira Vikas Patras worth Rs. two lacs which were found in the locker of Rajeev Sharma, who is the son of petitioner. The prosecuting agency has asserted that Rajeev Sharma was unemployed and was not carrying on any business and, therefore, he was fully dependent on his father (petitioner). It is further contended that the petitioner had claimed medical reimbursement in respect of his son Rajeev Sharma asserting that his son was dependent on him. The petitioner has, on the other hand, asserted that Rajeev Sharma, was not dependent on him but was carrying on his own business and he has separate source of income: In my view, the question as to whether the Indira Vikas Patras worth rupees two lacs found in the bank locker of Rajeev Sharma were actually held by him on behalf of the petitioner or the same belonged to him and wee purchased from his own sources of income, can be decided only on the basis of evidence which may be led during the trial. This Court cannot while dealing with the petition under Section 482, Cr.P.C. come to any conclusion on this point, nor can give any finding in respect of the same.

17. On a consideration of material placed before me, I am unable to come, to the conclusion that there was no material on the basis of which the learned Special Judge could proceed against the petitioner and frame the; charge against him.

18. In the result, this petition is dismissed. It is, however, made clear that any observation made in this judgment will not, in any way, affect the trial on merits.