2023 Supreme(Bom) 687

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT NAGPUR
G.A. SANAP, J.
Smt. Chhaya Yuvaraj Dahiwal & Ors. - Applicants
Versus
State of Maharashtra, Through ACB, Nagpur - Non-Applicant
Criminal Revision Application (Revn) No. 22 of 2014
Decided On : 06-06-2023

The offence of abetment of the offence committed by the Government Servant cannot be proved against remaining accused, who have been roped in with the aid of section 109 of the I.P.C. read with the offences under the P.C. Act.

Headnote:

PREVENTION OF CORRUPTION ACT, 1988 - SECTION 13(1)(e) READ WITH SECTION 13(2) - INDIAN PENAL CODE, 1860 - SECTION 109 - ABETMENT - JURISDICTION OF SPECIAL COURT - DISCHARGE APPLICATION - SCOPE OF INQUIRY - FACTUAL BACKGROUND - FINDINGS OF THE COURT - ISSUES - RATIO DECIDENDI - FINAL DECISION - MAIN LEGAL POINT

Fact of the Case:

The deceased public servant, Yuvraj Kashinath Dahiwal, was the husband of accused No. 1 and the father of accused No.2. A complaint was made against the deceased alleging accumulation of property disproportionate to his known sources of income. During the investigation, the deceased public servant as well as accused Nos. 1 and 2 were called upon to explain the source of money for accumulation of the property which was found prima facie disproportionate to the known sources of income of the deceased Government Servant. Their explanation was not found satisfactory. The investigation revealed that the deceased Government Servant accumulated property worth Rs.49,08,291/- (Rs. Fourty Nine Lacs Eight Thousand Two Hundred and Ninety One only), which was disproportionate to the known sources of his income. The investigation further revealed that accused Nos. 1 and 2, being wife and son of the deceased Government Servant, abetted the commission of the offence by the deceased public servant. Public servant Mr. Dahiwal died on 11.10.2010 before filing the chargesheet. However, by that time the major part of the investigation was over. After his death, the charge-sheet came to be filed against the accused Nos. 1 and 2, in the Special Court designated under the Prevention of Corruption Act, 1988 (P.C. Act), for the offences punishable under Section 109 of the Indian Penal Code (I.P.C.) read with Section 13 (1)(e) read with Section 13 (2) of the P.C. Act on 16.08.2011. Accused Nos.1 and 2 filed an application under Section 227 of the Code of Criminal Procedure, 1973 for their discharge.

Finding of the Court:

The Court held that the offences alleged to have been committed by the accused Nos. 1 and 2 falls in the category of the offences provided under Section 3(1) of the P.C. Act. The Court further held that the offences under Section 109 read with Section 13 (1)(e) read with Section 13 (2) of the P.C. Act would not get abetted on the abatement of the prosecution against the deceased Government Servant. The Court also held that the Special Court has jurisdiction to try all P. C. Act offences and/or even non-P.C. Act offences allegedly committed by a person other than a public servant. In case of death of sole accused-public servant, the jurisdiction of the special court is not affected. The special Judge can of course try non P.C. Act cases alone against the non-public servant.

Issues: 1. Whether the prosecution would abate or stand terminated against accused Nos. 1 and 2 in the backdrop of the allegations against them, after the death of the Government Servant? 2. Whether the Special Court will have a jurisdiction to try the case against accused Nos. 1 and 2? 3. If the answer to the above questions is against accused Nos. 1 and 2 and in favour of the prosecution then, whether the evidence compiled in the charge-sheet would be sufficient to presume that the accused Nos. 1 and 2 have committed the offences under Section 109 of the I.P.C. read with Section 13 (1)(e) read with section 13 (2) of the P.C. Act?

Ratio Decidendi: 1. The offence under Section 109 of the I.P.C. is separate, distinct and substantive offence. 2. The offence gets attracted if any of the requirements of Section 107 of the I.P.C. is satisfied. 3. The offences specified in clause (a) of Section 3(1) of the P.C. Act can be provided in Chapter III of the P.C. Act namely the offence under Sections 7, 8, 9, 10, 11, 12 and 13. 4. Section 3 (1) would include the offence punishable under the P.C. Act, the conspiracy to commit the offence under the P.C. Act, attempt to commit the offence under the P.C. Act and the abetment of any offence under the P.C. Act. 5. If the offences alleged to have been committed are within the scope and ambit of Section 3(1) of the P.C. Act then the special Court constituted under Section 4 of the P.C. Act, would have exclusive jurisdiction to try the said offences even against the non public servant.

Final Decision: The Court dismissed the revision application filed by the accused Nos. 1 and 2.