S.B. Shukre, J.

1. Heard. Admit. Heard finally by consent.

2. Initially, this application was filed by Prakash Ramaji Ambagade and Smt. Nalini Prakash Ambagade, the accused no. 1 and 2 in the charge-sheet filed against them by the Anti Corruption Bureau, Nagpur, for the offence punishable under Section 13(2) read with Section 13(1)(e) of Prevention of Corruption Act and under Section 109 of Indian Penal Code.

3. Applicant no. 1, who is now dead and who was accused no. 1, was the husband of applicant no. 2, original accused no. 2. Accused no. 2 has been roped in the charge-sheet on the allegations that being wife of accused no. 1, she abetted accused no. 1, her husband, during the period from the year 1973 to the year 2001, to amass huge health which was disproportionate to his known source of income. The value of the disproportionate assets of accused no. 1, as estimated by the prosecution, was of Rs.29,30,642/-. In these disproportionate assets, it was alleged, the shares of assets held in the name of accused no. 2 was Rs.7,63,372/-. It was alleged by the prosecution that applicant no. 2 or accused no. 2, by holding these assets worth Rs.7,63,372/-abetted accused no. 1, her husband, in commission of the offence of accumulating assets disproportionate to his known source of income.

4. Both the accused had filed an application (Ex.9) seeking their discharge under Section227 of Code of Criminal Procedure from the said case. It was, however, rejected by the Judge of the Special Court by the order passed on 3.5.2007. Therefore, both the accused preferred the present application under Section 482 of Code of Criminal Procedure seeking their discharge from the case and seeking quashing of criminal proceedings.

5. During the pendency of the present application, original accused no. 1, who was applicant no. 1, passed away and, therefore, his name came to be deleted from the cause title of the application. Now, the application is being prosecuted only by his wife, accused no. 2.

6. The present applicant no. 2, who is accused no. 2, is a non-public servant and is facing a prosecution for commission of offence of collecting assets by a public servant disproportionate to his known source of income. The public servant, the original accused no. 1 and husband of present applicant, is no more alive and, therefore, learned counsel for applicant no. 2 submits that the offence alleged against the applicant cannot be proved. Though, learned APP disagrees, he could not show to me as to how the offence of abetment as alleged against the applicant no. 2 could be proved in the absence of the public servant, deceased applicant no. 1 or accused no. 1. If it is the case that the main offence of amassing illegal wealth disproportionate to the known source of income cannot be proved by the prosecution against the public servant, i.e. accused no. 1, having regard to the nature of allegations made against applicant no. 2, offence of abetment of the offence can obviously be not proved against the person who is not a public servant, i.e. accused no. 2. Allegations against applicant no. 2 or accused no. 2 are that she abetted the commission of offence by her husband, the accused no. 1, by intentionally aiding him to amass the wealth. The intentional aiding was in the nature of holding in her name the assets purchased by her husband using ill-gotten money. The fact that funds used for purchasing assets were supplied by the husband, the deceased public servant, has to be proved first in this case. It cannot be proved in the absence of deceased public servant and, therefore, offence of abetment of the nature alleged against his wife, the non-public servant, cannot also be proved.

7. In the case of Amara Krishna Mohan Rao & ors. v. State of A.P., 2012 Cri.L.J. 969 the learned Single Judge of Andhra Pradesh High Court has also taken the same view, as expressed by me in the earlier paragraph. The learned Single Judge has held that the question of prosecuting a non