VERY IMPORTANT POINTS
1. Offence under Prevention of Corruption Act can be abetted by another including one who is not a public servant.
2. In a prosecution for offence under Section 13(1)(e) of Prevention of Corruption Act of public servants their kith and kin who abetted any offences also could be arraigned as co-accused to face the said offence read with Section 109 of IPC.
3. Public Servants cannot escape from the tentacles of Section 13(1)(e) of P.C. Act by showing other legally forbidden sources, albeit such sources are outside the purview of clause (a) to (d) of sub-section (1) of Section 13.

Headnote:Prevention of Corruption Act, 1988-Section 13(1)(e) read with Section 4-Public servant possessing property disproportionate to his known source of income-Prosecution for offence of-Offence can be abetted by another including one who is not a public servant-If a non-public servant has abetted any of offences which a public servant commits such non-public servant is also liable to be prosecuted along with public servant in same trial-Public servant cannot escape from tentacles of Section 13(1)(e) by showing other legally forbidden sources, albeit such sources are outside purview of clause (a) to (d) of sub-section (1) of Section 13.
       Held : Section 4 of the P.C. Act confers exclusive jurisdiction to Special Judges appointed under the P.C. Act to try the offences specified in Section 3(1) of the P.C. Act. The placement of the monosyllable "only" in sub-section (1) is such that the very object of the sub-section can be discerned as to emphasize the exclusivity of the jurisdiction of the Special Judges to try all offences enveloped in Section 3(1). Clause (b) of the sub-section encompasses the offences committed in conspiracy with others or by abetment of "any of the offences" punishable under the P.C. Act. If such conspiracy or abetment of "any of the offences" punishable under the P.C. Act can be tried "only" by the Special Judge, it is inconceivable that the abettor or the conspirator can be delinked from the delinquent public servant for the purpose of trial of the offence. If a non-public servant is also a member of the criminal conspiracy for a public servant to commit any offence under the P.C. Act, or if such non-public servant has abetted any of the offences which the public servant commits, such non-public servant is also liable to be tried along with the public servant before the court of a Special Judge having jurisdiction in the matter. (Paras 8 & 9)
       It is true that Section 11 deals with a case of abetment of offences defined under Section 8 and Section 9, and it is also true that Section 12 specifically deals with the case of abetment of offences under Sections 7 and 11. But that is no ground to hold that the P.C. Act does not contemplate abetment of any of the offences specified in Section 13 of the P.C. Act. (Para 11)
       Section 13 of the P.C. Act is enacted as a substitute for Sections 161 to 165-A of the Penal Code which were part of Chapter IX of that Code under the title "All offences by or relating to public servants". One of the objects of the new Act was to incorporate all the provisions to make them more effective. Section 165-A of the Penal Code. The legislative intent is manifest that abettors of all the different offences under Section 13(1)(e) of the P.C. Act should also be dealt with along with the public servant in the same trial held by the Special Judge. (Para 13)
       As per Explanation to Section 13(1)(e) the "known sources of income" of the public servant, for the purpose of satisfying the court, should be "any lawful source". Besides being the lawful source the Explanation further enjoins that receipt of such income should have been intimated by the public servant in accordance with the provisions of any law applicable to such public servant at the relevant time. So a public servant cannot now escape from the tentacles of Section 13(1)(e) of the P.C. Act by showing other legally forbidden sources, albeit such sources are outside the purview of clauses (a) to (d) of the sub-section. (Para 15)
       There is no force in the contention that the offences under Section 13(1)(e) cannot be abetted by another person. Centrain illustrations would amplify the cases of abetments fitting each of the three clauses in Section 107 of the IPC vis-a-vis Section 13(1)(e) of the P.C. Act. The first illustration cited is this : If A, a close relative of the public servant tells him of how other public servants have become more wealthy by receiving bribes and A persuades the public servant to do the same in order to become rich and the public servant acts accordingly. If it is a proved position there cannot be any doubt that A has abetted the offence by instigation. Next illustration is this : Four persons including the public servant decide to raise a bulk amount through bribery and the remaining persons prompt the public servant to keep such money in their names. If this is a proved position then all the said persons are guilty of abetment through conspiracy. The last illustration is this : If a public servant tells A, a close friend of him, that he has acquired considerable wealth through bribery but he cannot keep them as he has no known source of income to account, he requests A to keep the said wealth in A s name, and A obliges the public servant in doing so. If it is a proved position A is guilty of abetment falling under the "Thirdly" clause of Section 107 of the Penal Code. Such illustrations are apt examples of how the offence under Section 13(1)(e) of the P.C. Act can be abetted by non-public servants. The only mode of prosecuting such offender is through the trial envisaged in the P.C. Act. (Paras 16, 17 & 18)
       Held consequently, in a prosecution for offence u/s 13(1)(e) of public servants their kith and kin also could be arraigned as co-accused to face the said offence read with Section 109 of IPC.

JUDGMENT

Thomas, J.-Leave granted.

2. Some of the former Ministers of the Tamil Nadu Government in the Ministry headed by the erstwhile Chief Minister Smt. Jayalalitha are being prosecuted before certain Special Courts for the offence, inter alia, under Section 13(1)(e) of the Prevention of Corruption Act, 1988 (for short "the P.C. Act"). The former speaker of the Tamil Nadu Legislative Assembly (when Smt. Jayalalitha was the Chief Minister) is also facing a similar charge. They are indicted on the premises that they were public servants during the relevant time and that each one has amassed wealth disproportionate to his/her known sources of income, for which he/she is unable to account.

3. But in all such cases, some of their kith and kin are also being arraigned as co-accused to face the said offence read with Section 109 of the Indian Penal Code (for short "the Penal Code"). Appellants herein are all those kith and kin who are now being proceeded against for the said offences in conjunction with the public servant concerned. They raised preliminary objections before the Special Courts on various grounds for pre-charge exoneration, but the Court repelled all such objections. They moved the High Court of Madras against such orders, but a learned Single Judge who heard the motions together, along with certain other petitions arising from the same prosecution proceedings, dismissed all the petitions by a common order, which is now being challenged in these appeals.

4. Appellants have restricted their contentions, in these appeals, to the question whether they are liable to be prosecuted along with public servants for the offence under Sections 109 of the Penal Code read with Section 13(1)(e) of the P.C. Act. Shri K.K. Venugopal, learned senior counsel arguing for the appellants submitted his point broadly that the offence under Section 13(1)(e) of the P.C. Act is unabettable, since the nub of the offence is the failure of the public servant to account for the excess wealth which none else can possibly do.

5. Respondent-State of Tamil Nadu has produced a copy of the decision rendered by a learned Single Judge of the Madras High Court dated 17-6-1988, in which the identical question was considered when it arose under Section 5(1) of the Prevention of Corruption Act, 1947 (for short "the old P.C. Act") wherein it was held that "the offence of acquiring and being in possession of disproportionate assets can be abetted by another including one who is not a public servant". It was pointed out by the respondent that the aforesaid decision was challenged before this Court through a special leave petition and on 14-12-1998 this Court has dismissed the said petition. Shri K.K. Venugopal has rightly contended that dismissal of the special leave petition will not amount to upholding of the law propounded in the decision challenged through that special leave petition. The aforesaid legal position seems to be well nigh Settled.(vide Indian Oil Corporation Ltd. v. State of Bihar1; Union of India v. All India Services Pensioners Association2; Supreme Court Employees Welfare Association v. Union of India3.

6. Shri Shanti Bhushan, learned counsel appearing for the respondent - State submitted that it would be a dangerous proposition that the offence under Section 13(1)(e) of the P.C. Act is unabettable because a non public servant who actively aids and facilitates the perpetration of the said offence would move at large with immunity. Learned counsel pointed out a few illustrations to drive the point home that such offence is clearly abettable by others and the abettors cannot be insulated from the reach of law.

7. Union of India was made a respondent before the Madras High Court and one Under Secretary to the Government of India had filed a counter affidavit therein on 1-12-1998 conceding to the legal position espoused by the appellants. But Shri V.R. Reddy, learned senior counsel now appearing for the Union of India strongly supported the s

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1999 Supreme(SC) 818

Cases Referred (4)