The prosecution must prove a public servant's disproportionate assets; upon such proof, the burden shifts to the accused, including non-public servants, to explain the source of their wealth.

JUDGMENT :

SUDHANSHU DHULIA, J.

1. I had the benefit of going through the Judgment authored by my learned brother Ahsanuddin Amanullah, J. where the Accused No.2 (P. Nallammal) has been acquitted for the offence under Section 109 of IPC read with Section 13 (1)(e) and Section 13 (2) of Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the PC Act’). Though I agree with some of the observations made by my brother Judge, yet I am unable to accept the conclusion and findings of acquittal as regards Accused No.2, who was the wife of the public servant Accused No.1. Consequently, I have found it necessary to pen down my reasons for doing so.

2. I would, first of all, make it clear that the delivery of this order has taken more time than usual. But then I was only handed over his opinion by my learned Brother a fortnight back and it has taken this much of time further for me to give my reasons.

3. Leave granted.

4. There are four appeals before us:

a. Appeal arising from SLP (Crl) No.2127/2024 filed by the Accused No.2 (P. Nallammal) challenging the impugned order dated 20.11.2023 by which appellant’s conviction and sentence of one year R.I for offence under Section 109 of IPC read with Section 13(1)(e) and Section 13(2) of PC Act by the Trial Court, has been affirmed.

b. Appeal arising from SLP (Crl) No.2288/2024 filed by Accused No.2 and Legal Heirs of the Accused No.1 (children of the Accused No.1 and Accused No.2), challenging the attachment Order as modified by the impugned order dated 20.11.2023.

c. Appeals arising from SLP (Crl) No.5196-5197/2024 filed by the Legal Heirs of the Accused No.1 (children of the Accused No.1 and Accused No.2), challenging the Administrative Order dated 03.03.2022 by which the Chief Justice of the High Court had listed the criminal appeals for fresh hearing which finally resulted in the common impugned order dated 20.11.2023 by which order of Accused No.2’s conviction and sentence as well as the order of the attachment, with modification, were affirmed.

5. For the sake of convenience, the facts of the case are being taken from the Criminal Appeal arising out of SLP (Crl) No. 2127 of 2024. However, the facts are not being reproduced in detail.

6. For the present purpose, it is sufficient to take note of the following details of this case:

a. Accused no.1 (husband of the appellant) who was a Member of the Legislative Assembly and a Minister, was accused of acquiring disproportionate assets while holding public office as a public servant. The properties were also accumulated in the name of the present appellant i.e. Accused no.2 and their minor children. The present appellant was thus accused of abetting the accumulation of disproportionate assets.

b. The Trial Court convicted Accused No.1 under sections 13(2) and 13(1)(e) of the PC Act, whereas the appellant (Accused No.2) was convicted under sections 13(2) and 13(1)(e) of the PC Act read with section 109 of the IPC. Accused No.1 and appellant (Accused No.2) were sentenced to rigorous imprisonment of two years and one year, respectively.

c. An attachment order dated 03.01.2001 was passed under sections 3 and 4 of the CRIMINAL LAW AMENDMENT ORDINANCE , 1944 (hereinafter referred to as ‘Ordinance’), whereby the disproportionate assets belonging to Accused No.1 and the appellant were attached.

d. Against both these orders (of conviction and sentence, and attachment, respectively), the accused filed appeals before the High Court. The High Court dismissed the criminal appeals by the impugned judgment dated