Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2021 Supreme(Kar) 467

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
M. NAGAPRASANNA, J.
CENTRAL BUREAU OF INVESTIGATION (ANTI-CORRUPTION BRANCH) NO.36, BELLARY ROAD GANGANAGAR BENGALURU - Appellant
Vs.
SMT.V.M.SARASWATHY - Respondent
CRIMINAL REVISION PETITION No.304 OF 2019, WRIT PETITION No.33084 OF 2018 (GM-RES)
Decided On : 20-12-2021

Advocates Appeared:
For The Appellant : SRI PRASANNA KUMAR P., SPL.PP.
For The Respondent:SRI P.N.MANMOHAN, ADVOCATE

Point of Law: Special Judge for cases arising under different provisions of Prevention of Corruption Act cannot try the subject offence. Therefore, the competent criminal Court of the appropriate jurisdiction will have to try the allegation under Section 109 of the IPC against the wife.

Headnote:
Prevention of Corruption Act - Sections 4(3), 239, 13(1)(e) r/w 13(2) - Penal Code, 1860 - Sections 109 and 471 - Special Courts Act, 1979 - Criminal misconduct by a public servant - Abatement of criminal proceedings - Seeking quash of FIR and charge sheet - Whether abatement annihilates abetment is issue to be answered in subject lis - Whether proceedings against accused No.1, husband of petitioner having abated on account of his death, would it not obliterate offence of abetment under Section 109 of IPC against petitioner and consequently proceedings have to be quashed - what is consequence or effect of such abatement of the trial.
Finding of the Court:
Allegation against petitioner is that she had abetted her husband to commit offence for purchase of many of moveable and immovable properties in her name out of ill-gotten money of her husband/Accused No.1. Allegations were primarily against accused No.1/husband of petitioner - There is no provision either in Code or any other law brought to my notice, which provides for consequences of abatement of criminal proceedings. Expression “abatement” is not defined in Act or Code. That leaves us to rely on dictionary meaning of expression “abate” - Court opinion that court cannot pass any order to quash aforesaid proceeding against petitioner under Special Courts Act, 1979 - Court view that death of main accused does not result in abatement of trial. The High Court, therefore, would now be under an obligation to consider order of discharge passed by learned trial Court on merits. Therefore, remand case to High Court for a re-consideration on the aforesaid issue in course of which it will be open for agitating parties to raise any other point including the issue as noticed above with regard to jurisdiction of the Special Court under Section 4(3) of P.C. Act in terms of the decision of this Court in Jitender Kumar Singh (supra).
Result: Writ Petition partly allowed and Criminal Revision Petition allowed in part.

ORDER :

Whether abatement annihilates abetment is the issue to be answered in the subject lis.

2. Writ Petition No.33084/2018 is filed by the accused No.2 calling in question an order dated 6-06-2018 passed by the XXXII Additional City Civil and Special Judge for CBI cases in Special C.C.No.308 of 2015 and also seeks quashing of the FIR registered on 19-02-2014 and the charge sheet dated 1.06.2015. The Criminal Petition No.304 of 2019 is filed by the Central Bureau of Investigation (‘CBI’) calling in question the very same order passed in Special C.C.No.308 of 2015 dated 6-06-2018. Therefore both these petitions are taken up together, heard and considered.

3. Brief facts leading to the filing of these petitions, as borne out from the respective pleadings are as follows:-

The CBI registered a FIR against the petitioner/accused No.2 and her husband M.Selvakumar alleging offences under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (‘PC Act’ for short) and Section 109 of the IPC. The complaint against the husband of the petitioner was while he was working as Deputy Director (Research) Training Center, Central Coffee Research Institute, Coffee Research Station, Balehonnur, Chikmagalur District has amassed assets disproportionate to his known sources of income during the alleged check period between 1-01-2005 and 31-03-2013.

4. The allegation against the petitioner is that she had abetted her husband to commit the offence for purchase of many of moveable and immovable properties in her name out of the ill-gotten money of her husband/Accused No.1. The allegations were primarily against accused No.1/husband of the petitioner. After the FIR being registered against both the accused, the CBI conducted an investigation and filed a charge sheet before the Special Court. Before the charge sheet could be filed and charges being framed by the Special Court, accused No.1, husband of the petitioner died on 29-03-2017. On the death of accused No.1 husband of the petitioner, the charge under the Prevention of Corruption Act stood abated. As the proceedings against the husband of the petitioner stood abated, what remained was the allegation of abetment against the petitioner as obtaining under Section 109 of the IPC.

5. On the ground that the principal offence against the principal offender having abated, the petitioner files an application before the Special Judge seeking her discharge from the case on the ground that abetment though is a standalone offence it cannot be continued against the petitioner in the light of the principal offender having died and the proceedings against him having abated. The offence under the Prevention of Corruption Act cannot be proved against accused No.1 having abated and such offence cannot be taken forward was the ground on which a discharge application, as stated hereinabove, was filed. The discharge application is disposed of by a strange order dated 6-06-2018. The Special Court accepts that the offence under the PC Act cannot be proved against the principal offender and when that cannot be proved abetting of offence by the petitioner to the husband for amassing wealth to purchase the property cannot stand. Holding thus, the Special Court rejects the application seeking discharge under Section 239 of the Cr.P.C. but directs charges shall be framed against the petitioner/accused No.2 for offences punishable under Section 13(1)(e) read with Section 13(2) of the PC Act. In an application for discharge, the petitioner suffers an order of additional charge. The petitioner calls in question this order passed by the Special Court in Writ Petition No.33084 of 2018.

6. During the pendency of this writ petition, the CBI also files companion criminal petition calling in question the very same order of the Special Court. The ground on which the CBI prefers the criminal petition is that the offence of abetment against the petitioner/accused No.2 could not have been quashed and a direction to