IMPORTANT POINT
Where accused was not in service on the date when police report was filed, no sanction u / s 6(J)(c) of Prevention of Corruption Act, 1947 was necessary.

JUDGMENT

Rengasamy, J. - This petition is fi1ed under S. 482 Code of Criminal Procedure to quash the C.C. No.46 of 1977 on the file of the Special Judge, Madras.

2. The petitioner is the former Chief Justice of this Court from 1.5.69 and retired with effect from 8.4.76. The First Information Report .was registered against him for the offence under Section 5(2) read with Sections 5(1)(b), 5(1)(d) and 5(1)(e) of Prevention of Corruption Act, hereinafter referred to as Act 1947, by the Central Bureau of Investigation - (C.B.I.) Police, New Delhi, on 24.2.76. Therefore he went on leave preparatory for retirement, on 9.3.1976 and retired on 8.4.1976. Charge sheet was filed against him before the Special Judge, Madras on 15.12.77 in C.C. No. 46/1977 for the offences under Section 5(1)(e) of the Act 1947. Thereafter, the petitioner filed petition under Section 482, Code of Criminal Procedure in Crl. M.P. No. 265/ 78 to quash the proceedings in C.C. No. 46/ 77 on certain grounds. Reported in K. Veerasami v. Union of India (1979 L.W. Crl. 64 (SN). The Full Bench of this Court, elaborately considering the grounds raised by the petitioner for quashing the proceedings, has dismissed it. Against that order of dismissal, the petitioner preferred an appeal before the Supreme Court in C.A. No. 400/79. The Constitution Bench of the Supreme Court consisting of 5 Judges upheld the view of this Court by dismissing the appeal and directed for early disposal of the criminal case pending before the Special Judge, Madras. The petitioner thereafter has come forward again with this petition under Section 482 Code of Criminal Procedure to quash the C.C. No. 46/77 on the following grounds:

The police report under Section 173 Cr. P.C. has emerged as a fabrication of false allegation two years after the First Information Report without giving any opportunity to the petitioner to account for the alleged disproportionate assets, which is violative of Artic1es 14, 19 and 21 of the Constitution of India.

The comparison of the First Information Report with police report shows the abuse of process of law by the investigating machinery.

There is lot of variance between the First Information Report and the report with regard to the alleged investment and the income.

In the First Information Report, the income is deflated and the assets and expenses are inflated.

No offence of criminal misconduct is made out within the meaning of Section 5(1)(e) of the Act 1947.

There are no materials ex facie to support the corruption charge.

The inability to account for the disproportionate asset is not an ipso facto proof for criminal misconduct.

Unless the inability to account the income is involved with means rea of moral turpitude, it will not be an offence and the police report does not disclose such an element.

As long as inability to account is not inconsistent with integrity and the absence of moral turpitude, offence under Section 5(1)(e) of the Act of 1947, is not made out.

Within the meaning of Section 5(1)(e) of the Act, enjoined under S. 214 of Cr. P.C. police report does not disclose the offence.

Each item or any variation of the rest of the items in the police report for showing the disproportionate assets, is consistent on the face of it with propriety and bona fide.

The accused of offence should, have been first called upon to account for the alleged disproportionate property before accusation and only when he was unable to satisfactorily account, he could be prosecuted.

As the inability to satisfactorily account the property is a test to the criminal misconduct, it has got first to be proved by the prosecution. As, that being not the allegation, the offence is not made out.

Without giving opportunity to satisfactorily account the pecuniary sources, making assertion of allegation in the First Information Report or police report does not attract the offence.

As Section 5(1)(e) of the Act, 1947 also is not requiring such. opportunity being given to explain the pecu