Important Point
While exercising power u/s 482 Cr. P.C., it is not permissible for Court to act as if it was a trial Judge.

Judgment

Arijit Pasayat, J.—The State of Madhya Pradesh questions legality of judgment rendered by a learned Single Judge of the Madhya Pradesh High Court, Gwalior Bench accepting the prayer made in terms of Section 482 of the Code of Criminal Procedure, 1973 (in short ‘the Code’) to quash the investigation and proceedings under Prevention of Corruption Act, 1988 (in short the ‘Act’) in a case (crime No. 116/94) registered by the Special Police Establishment, Lokayukt, Gwalior. Seven petitioners, who are the respondents herein, had filed the petition to quash the investigation and the proceedings on the ground that while investigating into the alleged acquisition of disproportionate assets by present respondent No. 1 Awadh Kishore Gupta (petitioner No. 1 before the High Court and described as accused hereinafter), the income of the other respondents were not taken note of. Several documents were annexed to the petition to contend that there was no undisclosed income of and/or acquisition of assets disproportionate to the known sources of income by the respondent No. 1 who at the relevant time was working as Executive Engineer in the Public Health Engineering Department of the Government of Madhya Pradesh. Before the High Court his wife was the petitioner No. 2; and his sons and daughter were petitioner Nos. 3 to 6 respectively and petitioner No. 7 was his father. It was their basic stand that the proceedings were continuing without grant of proper opportunity to them to explain their income and there was non-compliance with the requirements of the Act. The basic allegation against the accused was that he had acquired property beyond his known source of income thereby rendering him punishable under Section 13(1)(e) of the Act.

2. Stand of the appellant State who was respondent before the High Court was that the matter was still under investigation and the investigating agency was examining the articles seized and the assets claimed by the accused and his relatives. As the matter was still under examination by the investigating agency, no case for quashing the investigation/further proceedings was made out. The High Court came to hold that the documents annexed to the petition, more particularly, the income-tax returns indicate that all the properties shown in the returns were fully explained to have been acquired from the known sources of income of the accused and his relatives and nothing has been found to have been acquired disproportionately to the income of accused. Properties acquired by his relatives could not have been taken for constituting the offence so far as accused is concerned. Reference was also made to a Will executed by accused’s mother and it was concluded that there was nothing to show that the Will had taints of benami. It was held that the onus to prove a transaction as benami is on the person who asserts and has to be discharged by adducing legal evidence of a definite character. It was also held that the requirements of Section 13(1)(e) clearly stipulated that an opportunity has to be given, and a government servant cannot be said to have failed to satisfactorily account the pecuniary resources and properties disproportionate to his known sources of income in the absence of such opportunity. Accordingly it was held that nothing substantial had been collected though considerable time had elapsed to collect evidence to suggest that if prosecuted, the public servant would be liable to be convicted as there has been little progress in the investigation. With these observations, the investigation and further proceedings in the case registered were quashed. Properties seized from the accused were directed to be returned to him.

3. Learned counsel for the appellant submitted that the whole approach of the High Court was erroneous. At the stage of considering an application for quashing the investigation or further proceedings, it is not permissible to proceed as if the court was holding a trial and trying to sif