An abettor cannot be proceeded with the trial when the main accused has died, and the charge of abetting the offence cannot be proved in such circumstances.

This application is directed against the order dated 25.10.2010 passed by the leaned Special Judge, C.B.I, Dhanbad in R.C.No.5A/ 2005 AHD (R ) whereby the learned Special Judge rejected the application filed on behalf of the petitioner under Section 227 of the Code of Criminal Procedure for discharging him from the case.

2. The facts giving rise to this application are that C.B.I registered a case being R.C.5A/2005 AHD (R) against Bansilal (since died), father of the petitioner under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act on the allegation that the said Bansilal during the period from 1990 to 2005 while functioning in various capacities in the department of Telecom (B.S.N.L) accumulated properties disproportionate to his known source of income. During investigation, it was found that the accused Bansilal had acquired movable and immovable properties in his name as well as in the name of the petitioner (son of the deceased Bansilal) and his wife Pramila Devi worth Rs.1,33,12,658/- which are disproportionate to his known source of income for which Bansilal could not account for satisfactorily and therefore, charge sheet was submitted under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act against the accused Bansilal (Since died) and also against the petitioner under Section 109 of the Indian Penal Code read with Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Acton on an accusation that the petitioner abetted his father in acquiring said assets by ill-gotten money. On submission of the charge sheet, cognizance of the offences was taken against the petitioner. Thereupon an application was filed under Section 227 of the Code of Criminal Procedure for discharging the petitioner from the case.

3. After hearing, learned Judge vide its order dated 25.10.2010 rejected the application for discharge by recording following findings.

“Perused the case record. It appears that the charge sheet has been submitted against the petitioner under Section 13(2) read with 13(1)(e) of the Prevention of Corruption Act and under Section 109 of the Indian Penal Code. From the charge sheet it is clear that during the investigation of the case, C.B.I found that Sant Kumar Gupta (petitioner) is a Bachelor of Engineering. He did not get any employment anywhere and till date he fully depends on his father and he agreed to be one of the partners of the hotel running in the name and style of Shivam International, Station Road, Deoghar the construction cost of which as per the report of valuagtion cell, works out to Rs.1,63,14,700/- and the petitioner, Sant Kumar Gupta has been shown to have 50% share in the hotel and evidences gathered during investigation, have been found to be apt to prove the entire amount, over the above the amount of loan taken from Allahaad Bank, invested on the construction of the hotel M/s. Shivam International at Deoghar has actually been invested by the accused out of his ill-gotten money and the petitioner Sant Kumar Gupta has purposely been made a name lender. From the charge sheet it is clear that omissions and commissions on the part of the said petitioner, Sant Kumar Gupta lead to an irresistible conclusion that he abetted his father accused, let Bansilal under Section 109 of the Indian Penal Code in the commission of offences punishable under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act,1988. Therefore, there is sufficient material to frame charge against the petitioner under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 and under Section 109 of the Indian Penal Code. Hence discharge petitioner is hereby dismissed.

4. The said order was challenged in this revision application. Upon hearing the question which was framed to be decided was recorded under order dated 28.1.2011 which is as follows.

“The question which has been raised in this revision application, is