HON'BLE SRI JUSTICE K. LAKSHMAN
CRIMINAL PETITION No. 2812 OF 2022
ORDER:
This Criminal Petition is filed U/Sec.482 of Cr.P.C to quash the impugned order dated 05.10.2021 in Crl.M.P. No. 459 of 2015 in CC. N. 19 of 2013 on the file of the Principal Special Judge for Trial of SPE and ACB cases at Hyderabad and set aside the same and discharge the petitioner in CC No. 19 of 2013, on the file of the Principal Special Judge for Trial of SPE and ACB cases at Hyderabad, for the offences alleged against him.
2. Heard Sri V. Pattabhi, learned senior counsel representing Sri T. Srujan Kumar Reddy, learned counsel for the petitioner and Sri Ch. Vidya Sagar Rao, learned Special Public Prosecutor for TS ACB.
3. Petitioner herein is the sole accused in CC No. 19 of 2013. The offences alleged against the petitioner herein are under Sections 13 (1) (e) r/w. Sec. 13 (2) of Prevention of 2 KL,J Crl.P. No.2812 of 2022 Corruption Act, 1988. The allegation against the petitioner herein is that he is in possession of disproportionate assets to the tune of Rs.1,36,49,776/- i.e. total assets possessed and the excess expenditure is calculated as Rs.91,27,309/- + Rs.45,22,467/-, for which the petitioner/accused officer cannot account for satisfactorily.
4. During the pendency of the said C.C., the petitioner herein had filed the petition under Section 239 of Cr.PC vide Crl.MP No. 459 of 2015 seeking to discharge him in the said C.C. on the following grounds :
(1) A.C.B. Officials did not consider the legitimate income and expenditure of petitioner. (2) The investigating officer did not consider the family background of the petitioner. (3) The calculation shown in the charge sheet is incorrect and no case is made out against the petitioner to believe that the petitioner is in possession of assets disproportionate to the known sources of income.
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5. The said application was opposed by the ACB on the following grounds :
(i) While discharging the petition filed under Section 239 of Cr.P.C, the Court did not go into the merits of the case.
(ii) If there is prima facie case against the accused a charge can be framed and the petitioner is not entitled to discharge.
(iii) The investigating officer has got voluminous evidence to prove possession of disproportionate assets of the petitioner/accused officer.
6. The Court below vide order dated 05.10.2021 dismissed the said application on the following grounds:-
(i) The petitioner while disputing the calculations of the investigating officer has claimed that there is no case against him.
(ii) While deciding a petition filed for discharge, the Court need not go into the merits of the case. The Court has to see whether there is any prima facie material to believe that the petitioner has possessed disproportionate assets. The petitioner did not dispute the existence of properties shown in the annexures filed along with the charge sheet. Though 4 KL,J Crl.P. No.2812 of 2022 the petitioner disputed the quantum of expenditure and income, the same cannot be decided in a discharge petition.
(iii) The petitioner also required some oral evidence apart from production of all the required documents. Simply, because the petitioner claims that his children are in affluent position and his father-in-law purchased so many properties and earned so much of income by sale of properties, the same cannot be considered in discharge petition. It is for the prosecution to prove the calculations arrived at by the investigating officer by production of oral and documentary evidence. The petitioner has got a right to dispute the evidence by way of his cross-examination. Unless such an exercise is complete, the Court cannot come to a conclusion as to whether the petitioner herein is possessing disproportionate assets to the known sources of income.
Contentions of the petitioner
7. Sri V. Pattabhi, learned senior counsel representing Sri T. Srujan Kumar Reddy, learned counsel for the petitioner, would submit that the Court below has not considered the 5 KL,J Crl.P. No.2812 of 2022 contentions raised by the petitioner herein and also did not consider the legitimate income and expenditure of the petitioner and the family background and assets of the parents, parents-in-law of the petitioner. The calculations shown in the charge sheet are incorrect and no case is made out against the petitioner to believe that he possessed disproportionate assets to his known sources of income. The Court below erred in coming to the conclusion that the said facts cannot be considered in a petition filed under Section 239 of Cr.PC. The Court below failed to consider that the prosecution has filed charge sheet with lot of incompleteness. The Court below also failed to consider that charge sheet does not show or discuss about the employment particulars of the son and daughter-in- law of petitioner who undoubtedly have their own income which are matter of record, and added and shown all their income as income of the petitioner, which are all part of official record collected during investigation. 6
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8. With the said submissions he sought to quash the order dated 05.10.2021 and discharge the petitioner in CC No. 19 of 2013.
9. Whereas Sri Ch. Vidya Sagar Rao, learned Special Public Prosecutor for TS ACB placing reliance on the principle laid down in Asian Resurfacing of Road Agency Private Limited and Another Vs. Central Bureau of Investigation1 in Criminal Appeal Nos.1375-76, Girish Kumar Suneja Vs. CBI2 of Apex Court he would submit that the scope of the petition filed under Section 239 of Cr.P.C. is very limited and the Court cannot go into the merits of the case. According to him, the Court below on consideration of the same only dismissed the said discharge petition.
10. In view of the above facts, it is relevant to note that Section 239 Cr.P.C deals with discharge of accused:-
"When accused shall be discharged. If, upon considering the police report and the documents sent 1 (2018) 16 SCC 299 2 (2017) 14 SCC 809 7 KL,J Crl.P. No.2812 of 2022 with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing".
11. The Apex Court has considered the scope of Section 239 of Cr.P.C in a judgment reported in State of U.P. Vs. Udai Narayan and another3 and held that scanning and scrutinizing evidence and material produced by the prosecution cannot be considered in a petition filed under Section 239 of Cr.P.C.
12. In another case reported in 1991 Criminal Law Journal page 114, the Apex Court held that meticulous examination of statement in case diary is not permissible and discharge of accused on the said basis is not proper.
13. In Sheroj Singh Ahlawat and Others Vs. State of U.P. and another4, the Hon'ble Supreme Court held that the 3 1994 (4) Crimes 287 4 2013 (11) SCC 476 8 KL,J Crl.P. No.2812 of 2022 accused is entitled to urge his contentions while entertaining the discharge application only on the material submitted by the prosecution, but he is not entitled to produce any material at that stage and the court is not required to consider any such material.
14. In another case reported in State of Karnataka Lokayukta Vs. M.R. Hiremath5, the Apex Court held that at the stage of application for discharge, the Court has to proceed with an assumption that the material brought on record by prosecution is true and to evaluate the said materials and documents with a view to find out whether the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the offence.
15. Whereas in the present case, the investigating officer has laid charge sheet against the petitioner herein by specifically mentioning the abstract of assets in Annexure-I, abstract of income in Annexure-II and abstract of expenditure 5 2019 SCC 734 9 KL,J Crl.P. No.2812 of 2022 in Annexure-III. As rightly held by Court below, the actual income and expenditure of the petitioner has to be proved by way of oral and documentary evidence by the prosecution during the trial. The same cannot be decided on the basis of any petition filed under Section 239 of Cr.P.C. It is for the prosecution to prove the calculations arrived at by the investigating officer by way of evidence both oral and documentary. The burden lies on the prosecution to prove the same. The petitioner will be given an opportunity of cross- examination to dispute the same. Unless the said exercise is complete, the Court cannot come to a conclusion that petitioner is in possession of disproportionate assets to his known source of income. The defence taken and grounds urged by the petitioner herein in the discharge petition are triable issues. The petitioner has to face the trail and prove that he has not committed any offence. The same cannot be considered in a petition under Section 239 of Cr.P.C. The said facts were considered by the Court below in the impugned order. It is a 10 KL,J Crl.P. No.2812 of 2022 reasoned order and well founded. The petitioner herein failed to make out any case to quash the said order and discharge him from C.C. No. 19 of 2013. As such, this petition is liable to be dismissed and accordingly dismissed.
16. However, as stated supra, the Calendar Case is of the year 2013. The petitioner had filed the above said discharge petition in the year 2015 and the same was decided on 15.10.2021. The petitioner herein had filed the present application after lapse of almost five months. In view of the same, the learned Principal Special Judge for trail of SPE and ACB Cases, Hyderabad shall dispose of the CC No. 19 of 2013 in accordance with law, as expeditiously as possible.
17. As a sequel, the miscellaneous petitions, if any, pending in the criminal petition shall stand closed.
_________________ K. LAKSHMAN, J 06th June, 2022 Skj.