Mere ownership of assets by a spouse does not establish abetment under IPC without evidence of active participation or instigation in the crime.

Judgment :

S.S. Mishra, J.

1. The husband of the petitioner being the principal accused and the petitioner are facing prosecution in Disproportionate Assets case arising out of the F.I.R. in Berhampur Vigilance P.S. Case No.45 of 2016 corresponding to GR (V) Case No.33/2016(v) for the offences under Sections-13(2)/13(1)(e) of the Prevention of Corruption Act r/w Section- 109 IPC pending in the Court of the learned Special Judge, Vigilance, Berhampur. The petitioner is seeking quashing of the criminal proceeding initiated against her under the aid of Section-109 .

2. The petitioner is the wife of the main accused in the said F.I.R. She is admittedly a housewife. The only allegation against the petitioner is that there are certain assets in her name. Therefore, under the aid of Section-109 IPC , she has been made accused and made to suffer the proceeding. The petitioner in the present proceeding is assailing the entire criminal prosecution initiated against her.

3. Mr. Maharana, learned counsel for the opposite party submits that the principal accused had approached this Court by filing of CRLMC No. 687 of 2021 seeking quashing of the entire proceeding against him. After the removal of the properties counted towards his disproportionate assets belongs to his father. The coordinate Bench of this Court quashed the proceeding vide its order dated 01.09.2021 on the ground that after the removal of the assets of the father of the petitioner the disproportionate amount falls less than 100%, the Criminal prosecution initiated against the petitioner is not sustainable. Thereafter, the Vigilance Department approached the Hon’ble Supreme Court by filing SLP (CRL) No. 5244/2022. Vide order dated 13.07.2022 while staying the operation of the impugned order, the Apex Court directed continuance of the investigation and allowed the investigating agency to file the report under Section.173 of Cr.P.C. The investigation was concluded and charge sheet was filed. Thereafter, the matter was finally taken up by the Hon’ble Supreme Court on 03.03.2023. While disposing of the petition following order was passed:-

“ Leave granted.

The impugned judgment dated 01.09.2021 allows the petition under Section 482 of the Code of Criminal Procedure, 1973, filed by the respondent-E Sankar Rao and quashes the proceedings emanating from FIR No. 45 of 2016 dated 11.08.2016 registered at Police Station – Berhampur Vigilance, District Ganjam, Odisha under Section 13 (2) read with (1)(e) of the Prevention of Corruption Act, 1988 and Section 109 of the Indian Penal Code, 1860.

By order dated 13.07.2022, while issuing notice in the present appeal by special leave, we had stayed the operation of the impugned judgment, clarifying that the investigation will continue, and the appellant would be at liberty to file the charge sheet/closure report before the trial Court.

We have examined the reasoning in the impugned judgment, and we are of the opinion that the High Court has conducted a mini trial when the investigation was still pending. The judgment refers to the stand of the respondent with regard to the properties of his father, and examines whether or not a case for disproportionate assets is established. Reference is made to the Vigilance Department’s Circular No. 4/2015. According to us, this is not the correct and proper approach to be adopted by the High Court. Normally, the High Court’s do not interfere at the stage of the investigation as facts are ascertained and thereupon either the closure report or the charge sheet is filed by the Police.

We are informed that charge-sheet has been filed relying on evidence and material collected during investigation.

During th