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KARNATAKA HIGH COURT
CIRCUIT BENCH AT GULBARGA
Subhash B. Adi, J
Babappa
Versus
State by Lokayuktha Police, Gulbarga
Criminal Appeal No. 1352 of 2003
Decided on 15.4.2009
CODE OF CRIMINAL PROCEDURE, 1973 - Section 313: [Subhash B.Adi,J] Power to examine accused - Held, Casually putting questions to accused by not referring to specific incriminating statement and merely proceeding on assumption that accused has admitted allegations causes prejudice to accused. Examination of accused is improper.
PREVENTION OF CORRUPTION ACT, 1988 - Section 13: [Subhash B. Adi, J] Offence under - Held, Prosecution is only required to show that assets of accused is disproportionate to known source of income. It can be done by leading evidence of relevant witnesses. Most of the witnesses examined by prosecution are supporting case of accused and their evidence is not challenged by prosecution. Even if burden is on accused, initial burden is on prosecution and that has to be discharged only by prosecution. From the entire evidence led by prosecution, it does not prove the charge alleged against accused. Accused was acquitted.
PREVENTION OF CORRUPTION ACT, 1988 - Section 13(1)(e): [Subhash B. Adi, J] Possession of property disproportionate to his known sources of income by Public servant - Held, Expression "known sources of income" refers, not to sources known to prosecution, but to sources known to accused himself for he alone can know all his sources of income. Act casts the burden on accused not only to offer plausible explanation as to how he acquired the wealth, but also satisfy the Court that his explanation is worthy of acceptance. This burden, he can discharge by establishing his case by preponderance of probability.
PREVENTION OF CORRUPTION ACT, 1988 - Section 13(1)(e): [Subhash B. Adi, J] Unaccounted property - Prosecution of public servant on charge of criminal misconduct of being in possession of unaccounted property - Failure of prosecution to adduce evidence to establish charge - Almost all prosecution witnesses in their examination-in-chief, supported case of accused rather than that of prosecution, but none of them were treated as hostile and subjected to cross-examination because statements made by them before Court were in consonance with their earlier statement to investigating officer - Prosecution has no explanation as to why such witnesses were examined by it - Held, In the circumstances, order of conviction cannot be sustained and is therefore to be set aside.
PREVENTION OF CORRUPTION ACT, 1988 - Section 17, Second Proviso & Section 13(1)(e): [Subhash B. Adi, J] Investigation into allegation against public servant of being in possession of property disproportionate to his known sources of income - Held, In order to investigate the matter, there has to be an authorization as contemplated under Section 17 of the Act. Section 17 bars any other police officers of the rank mentioned therein from investigating the matter and Proviso 2 to Section 17 requires an order of a Police Officer not below the rank of Superintendent of Police in the matter of investigation of an offence referred to under Section 13(1)(e). The burden undoubtedly is on the prosecution to prove that there was an order authorising the investigation and non-production of the same was treated as fatal. In case of omission on the part or prosecution to produce such order, adverse presumption can be drawn that investigation was carried out without such order, and hence investigation was illegal.
PREVENTION OF CORRUPTION ACT, 1988 - Section 17: [Subhash B. Adi, J] Investigation- Competent authority to investigate offence under Section 13(1)(e) of Act - Held, Investigation by officer below rank of Deputy Superintendent of Police without authorisation of law vitiates investigation.
PREVENTION OF CORRUPTION ACT, 1988 - Sections 19 & 13(1)(e): [Subhash B. Adi, J] Sanction to prosecute - Evidence gathered by Investigating Officer along with his final report was not placed before sanctioning authority, who passed the order of sanction on request made by Lokayukta, as evidenced by statement of Investigating Officer himself to effect that he estimated value of unaccounted property and drew up final investigation report only after obtaining sanction - Held, Sanction to prosecute given by authority without due application of mind, is invalid.
Subhash B. Adi, J : This appeal is against the judgment of conviction by the learned Sessions Judge, Special Court, Gulbarga, in Special case . No.73/96 dated 8.8.2003.
2. Prosecution case as unfolded is that, the accused was charge-sheeted for an offence punishable under Section 13(1)(e) read with 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act, inter alia alleging that accused being a Government servant found in possession of assets disproportionate to his known source of income and in the name of his family members and same is not satisfactorily accounted.
3. After hearing the prosecutor and the learned Counsel for the accused, charges were framed and were read over to the accused in the language known to him. Accused pleaded not guilty and claimed to be tried, Prosecution to prove its case, examined PW1 to PW31 and marked exhibits P1 to P98. On the other hand, the accused led evidence of DW1 to DW6. No documents were marked in the defence evidence.
4. The Special Court placing reliance on the evidence lead by the prosecution and the documents produced by it, held that the prosecution has proved the charges beyond reasonable doubt by holding that the accused was found in possession of assets disproportionate to his known source of income and sentenced the accused to undergo three years R.1. for an offence punishable under Section 13(1)(e) read with Section 13(2) of the Act and the fine of Rs. 10,000/- in default to undergo S.l. for 6 months. It is this judgment of conviction is called in question by the accused in this appeal.
5. Sri Shanker Hegde, learned Counsel appearing for the accused, submitted that the judgment of conviction is not sustainable mainly on four grounds:
(i) That for the purpose of investigating of an offence punishable under Section 13(1)(e) of the Act, an order of the police officer not below the rank of Superintendent of Police is necessary under Section 17 second proviso and in this case prosecution has not produced any document to prove the same.
(ii) That the order of sanction granted under Section 19 of the Act is one without application of mind. Sanctioning Authority except referring to a report had not looked into the records of the prosecution, and that the records of the prosecution were not at all placed before the Sanctioning Authority, and in view of the absence of application of mind, granting sanction has prejudicially affected the case of the accused, as such the sancti. 1 is void in law and the prosecution based on such sanction illegal.
(iii) That the object of recording the statement of accused under Section 313 of Cr.P.C. is to make it known to the accused as regard to the evidence and material against him so that the accused would have an opportunity to explain. However, the Court has not framed specific questions and in turn the Court has clubbed several aspects into one and has put complicated questions, which is not only confusing, but suffers from clarity, does not indicate as to what is the question for which the accused was to explain, and as such same has resulted in failure of justice to the accused, and it has prejudicially affected the case of the accused, and further has resulted in denial of opportunity to the accused to explain his defence.
iv) That, the evidence laid by the prosecution itself discloses the source of income and the prosecution witnesses have stated in their evidence that the assets found in possession of the accused and his family are well-accounted and have given satisfactory explanation as regard to the assets found in possession of the accused and his family. He further submitted even taking the evidence of the prosecution as it, without even cross-examination or challenge, it will not prove the charge of disproportionate assets to the known source of income.
6. Regarding Point No.1: Section 17 which reads as under:
17. Persons authorised to investigate. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2
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