Bombay High Court
Smt. Chhaya Yuvaraj Dahiwal And ... vs State Of Maharashtra, Thorugh ... on 6 June, 2023
Bench: G. A. Sanap
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL REVISION APPLICATION (REVN) NO.22 OF 2014
1. Smt Chhaya Yuvaraj Dahiwal
Aged 56 Yrs., Occ.: Business,
2. Mr Sourabh Yuvaraj Dahiwal,
Aged 34 Yrs., Occ.: Business,
Both R/at 11/12, Rajchhaya, next to
Sahyog Mangal Karayalay, Basmat Road,
Parbhani .... APPLICANTS
// V E R S U S //
State of Maharashtra,
Through ACB, Nagpur ... NON-APPLICANT
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Mr Rohan Nahar, Adv. a/w. Mr V. U. Waghmare and Mr A.P. Paliwal,
Advocates for the applicants
Ms M. H. Deshmukh, APP for non-applicant
--------------------------------------------------------------------------------------------------
CORAM : G. A. SANAP, J.
JUDGMENT RESERVED ON : 21/04/2023
JUDGMENT PRONOUNCED ON : 06/06/2023
JUDGMENT :
1 Heard.
2 In this criminal revision application, challenge is to the
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order dated 27.11.2013 passed by the learned Special Judge,
Nagpur in Special (ACB) Case No. 07/ 2011, whereby the learned
Special Judge rejected the application made by the accused Nos. 1
and 2 for their discharge in the case.
3 The facts relevant for the purpose of this revision are
as follows:
Deceased- Yuvraj Kashinath Dahiwal was the husband
of accused No. 1 and the father of accused No.2. In the complaint,
the allegation was made against deceased Yuvraj, who was the
Government Servant, that he accumulated the property of
Rs.49,08,291/- (Rs. Fourty Nine Lacs Eight Thousand Two
Hundred and Ninety One only) dis-proportionate to the known
sources of his income. On receipt of the complaint, he was called
upon to explain the same. His explanation was not found
satisfactory and therefore, the crime bearing No. 3017 of 2005
came to be registered against him as well as the accused Nos. 1 and
2 for the offences punishable under Section 13 (1)(e) read with
Section 13 (2) of the Prevention of Corruption Act, 1988
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(hereinafter referred to as 'the P.C. Act') and under Section 109 of
the Indian Penal Code (hereinafter referred to as 'the I.P.C.) at
Sakkardara Police station, Nagpur. During the course of the
investigation, the deceased public servant as well as accused Nos. 1
and 2 were called upon to explain the source of money for
accumulation of the property which was found prima facie
disproportionate to the known sources of income of the deceased
Government Servant. Their explanation was not found satisfactory.
The investigation revealed that the deceased Government Servant
accumulated property worth Rs.49,08,291/- (Rs. Fourty Nine Lacs
Eight Thousand Two Hundred and Ninety One only), which was
disproportionate to the known sources of his income. The
investigation further revealed that accused Nos. 1 and 2, being wife
and son of the deceased Government Servant, abetted the
commission of the offence by the deceased public servant. Public
servant Mr. Dahiwal died on 11.10.2010 before filing the charge-
sheet. However, by that time the major part of the investigation was
over. After his death, the charge-sheet came to be filed against the
accused Nos. 1 and 2, in the Special Court designated under the
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P.C. Act, for the offences punishable under Section 109 of the
I.P.C. read with Section 13 (1)(e) read with Section 13 (2) of the
P.C. Act on 16.08.2011. Learned Judge took the cognizance of the
offences against the accused Nos. 1 and 2.
4 Accused Nos.1 and 2 filed an application under Section
227 of the Code of Criminal Procedure, 1973 for their discharge. It
is their contention that they are not the public servant and
therefore, Section 13 (1)(e) read with section 13 (2) of the P.C. Act
could not be attracted against them. The main accused who was
the Government Servant died before filing the charge-sheet and
therefore, the prosecution came to an end against him on his death.
It is stated that therefore by invoking Section 109 of the I.P.C. the
prosecution against them could not be continued. According to
them, deceased Yuvraj Dahiwal was the principal accused and
therefore, after his death accused Nos. 1 and 2 being the abettor
could not be prosecuted. In the absence of the principal offender
they would suffer prejudice inasmuch as the Government Servant
was expected to explain the source of his income. According to
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them, there is no material in the charge-sheet to come to a
conclusion that the accused Nos. 1 and 2 instigated deceased Yuvraj
Dahiwal or engaged in conspiracy with him to commit crime.
Accused Nos. 1 and 2 have their independent source of income.
They are income tax payee. They have explained the source of their
income and also the source for purchase of the property. The
investigation officer caused inordinate delay in filing the charge-
sheet. According to them, the material on record is sufficient to
satisfy that the property in possession of the deceased Yuvraj
Dahiwal was not disproportionate to his known sources of income.
5 This application was opposed by the prosecution. It is
contended that accused No.1 is the wife and accused No. 2 is the
son of deceased Yuvraj Dahiwal. There is sufficient material to show
that they abetted deceased Yuvraj in the commission of crime of the
accumulation of assets disproportionate to his known sources of
income. The evidence compiled in the charge-sheet is sufficient to
presume that they have committed the crime. It is further
contended that simply because of the death of the Government
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Servant, accused Nos.1 and 2 being the abettor of the commission
of crime by the deceased Government Servant, under the P.C. Act,
cannot be discharged.
6 Learned Special Judge after granting an opportunity of
hearing to the parties found that in the facts and circumstances he
has jurisdiction to entertain and try the case against the accused
Nos. 1 and 2. Learned Judge also found that the accused Nos. 1
and 2 being an abettor in the commission of the offences under the
P.C. Act they cannot get away with the crime prima facie made out
against them due to death of the Government Servant. Learned
Judge found that the material on record is sufficient to presume that
the accused Nos. 1 and 2 have committed the offence for which
they have been prosecuted. Learned Judge found that in the teeth
of evidence on record case was not made out for the discharge.
Learned Special Judge accordingly dismissed the application. The
accused Nos.1 and 2, being aggrieved by this order, are before this
Court in revision.
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7 I have heard Mr Rohan Nahar, learned Advocate for
the accused Nos. 1 and 2 and Ms Mayuri Deshmukh, learned APP
for the State. I have gone through the record and proceedings.
submitted that the learned Special Judge has committed patent
illegality in rejecting the application made by accused Nos. 1 and 2
for their discharge. Learned Advocate relying upon the decision of
the Co-ordinate Bench of this Court in the case of Prakash Ramaji
Ambagade and Another .v/s. State of Maharashtra 1 submitted that
the accused Government Servant who was the main accused in this
crime died during the pendency of the investigation and therefore,
the offence alleged to have been committed by accused Nos. 1 and 2
cannot be proved against them in the absence of the public servant
and more particularly the offence of abetment cannot be proved
against them. Learned Advocate submitted that in the similar state
of facts the Co-ordinate Bench has held that in view of death of the
Government Servant the offence of abetment of the offence
1 2015 ALL MR (Cri) 1564
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committed by the Government Servant cannot be proved against
remaining accused, who have been roped in with the aid of section
109 of the I.P.C. read with the offences under the P.C.Act. Learned
Advocate submitted that there is no iota of evidence to substantiate
the case of the prosecution that the accused Nos.1 and 2 abetted the
commission of the offence by the deceased Government Servant
under Section 13 (1)(e) read with section 13 (2) of the P.C. Act.
Learned Advocate therefore submitted that the accused Nos. 1 and
2 would be prejudiced, in the absence of the deceased Government
Servant, to explain the source of income to acquire the property.
Learned Advocate further submitted that after the death of the
Government Servant, accused Nos. 1 and 2 cannot be tried for the
offences under the P.C. Act. It is submitted that at the most they
could be tried for the non P.C. Act offences. Learned Advocate
therefore submitted that the learned Judge of the Special Court
would have no jurisdiction to try the non P.C. Act offences against
the accused Nos.1 and 2. Learned Advocate submitted that the
material complied in the charge-sheet is not sufficient to satisfy the
basic requirement of the abetment of the commission of the
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offences under the P.C. Act by the accused Nos. 1 and 2. Learned
Advocate submitted that the material complied in the charge-sheet
is not sufficient to frame charge against accused Nos. 1 and 2.
Learned Advocate submitted that learned Special Judge was not
right in rejecting the application made for discharge by accused Nos.
1 and 2. Learned Advocate in order to substantiate his submissions
relied upon the following decisions:
i. Central Bureau of Investigation .v/s. V. C. Shukla and others,
reported in, (1983) 3 SCC 410
ii. State of Maharashtra .v/s. Ramdas Shankar Kurlekar and another,
reported in, 1999 Cr.L.J. 196
iii. State, through CBI, New Delhi .v/s. Jitendra Kumar Singh,
reported in, 2014 AIR SCW 1153
iv. Abhishek Shrivastava .v/s. U.O.I., reported in, AIRONLINE
2011 ALL 3849
v. Amara Krishna Mohan Rao and Others .v/s. State of A.P.,
reported in, 2012 Cri.L.J. 969
vi. Prakash Ramaji Ambagade and Another .v/s. State of
Maharashtra, reported in, 2015 ALL MR (CRI) 1564
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9 Learned APP submitted that accused Nos. 1 and 2 even
after the death of the Government Servant would squarely falls
within the dragnet of Section 109 of the I.P.C. read with Section 13
(1)(e) read with Section 13 (2) of the P.C. Act. Learned APP
submitted that in this case the offence of abetment, supported by
the evidence collected during the course of investigation, is separate,
distinct and substantive offence. Learned APP submitted that the
death of the Government Servant would not stand in the way of the
prosecution to prove the accumulation of the assets disproportionate
to the known sources of the deceased Government Servant and the
abetment of the said crime by accused Nos. 1 and 2. Learned APP
submitted that since the accused Nos. 1 and 2 are being tried for a
distinct and substantive offence and therefore, they cannot get
benefit of death of the Government Servant. Learned APP
submitted that if such a view is taken then the same would render
the provision of the law nugatory and otiose. Learned Advocate
submitted that the decision rendered by the Co-ordinate Bench of
this Court is required to be considered in view of the settled position
of law laid down in numerous decisions on this point and if
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considered in the backdrop of the settled legal position it will have
to be held to be per incuriam. Learned APP submitted that if such a
view is taken then in every prosecution under the P.C. Act after the
death of Government Servant the other accused who are roped in
criminal case with the aid of Section 109 read with the offences
under the P.C. Act would go unpunished. Learned APP submitted
that to adduce the evidence and to prove the relevant charge, is the
concern of the prosecution. Learned APP submitted that on
assumption of the difficulty on this count by the Court, the accused
cannot be allowed to go scot-free. Learned APP further submitted
that the prosecution in each case is competent to take care of such
aspect. Learned APP further submitted that the offences committed
by the accused would squarely fall within the ambit of Section 109
of the I.P.C. read with Section 13 (1)(e) read with Section 13 (2) of
the P.C. Act and therefore, by virtue of the provision of Section 3(1)
of the P.C. Act, the offences committed by the accused would fall
within the scope of the said Section. Learned APP therefore
submitted that by virtue of Section 3 read with Section 4 of the P.C.
Act learned Special Judge has jurisdiction to try the accused Nos. 1
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and 2. Learned APP submitted that there is ample evidence on
record to presume that the accused Nos. 1 and 2 have committed
the offences as mentioned above. Learned APP submitted that at
the stage of discharge the mini trial cannot be conducted by
appreciating the evidence or by considering the pros and cons of the
case of the prosecution and the evidence on record. Learned APP in
support of her submissions placed heavy reliance on following
decisions:
i. Siddarth Verma .v/s. CBI, reported in , 2010 (4) CCR 214
ii. HCL Infosystem Limited .v/s. Central Bureau of Investigation,
reported in, (2016) 9 SCC 281
iii. High Court on its own motion .v/s. State of Maharashtra in Suo
Motu Revision Application No. 16 of 2015, dated 04.06.2018
iv. P. Nallammal and Another .v/s. State Represented by Inspector
of Police, reported in, (1999) 6 SCC 559
10 In the backdrop of the submissions advanced by the
learned Advocate for the accused and the learned APP this Court is
primarily required to decide following three issues:
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i. Whether the prosecution would abate or stand terminated against
accused Nos. 1 and 2 in the backdrop of the allegations against
them, after the death of the Government Servant ?
ii. Whether the Special Court will have a jurisdiction to try the case
against accused Nos. 1 and 2 ? and
iii. If the answer to the above questions is against accused Nos. 1
and 2 and in favour of the prosecution then, whether the evidence
compiled in the charge-sheet would be sufficient to presume that
the accused Nos. 1 and 2 have committed the offences under
Section 109 of the I.P.C. read with Section 13 (1)(e) read with
section 13 (2) of the P.C. Act ?
11 At the outset, I will deal with the first issue. Learned
Advocate relied mainly on decision of Co-ordinate Bench of this
Court in the case of Prakash Ambagade (supra). It would be
necessary to state that the facts of this case and the facts of the case
on hand before me are identical. In this case, the accused No. 2 was
the wife of the Government Servant, who was accused No.1. The
Government servant died after filing of the charge-sheet. The wife-
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accused No.2 was prosecuted for the offence under Section 109 of
the I. P. C. read with Section 13 (1)(e) read with Section 13 (2) of
the P.C. Act. The application was made by the wife for discharge. It
was rejected by the learned Special Judge. In the revision, the Co-
ordinate Bench set aside the said order. The reasons recorded for
setting aside the order can be seen from para 6 of the order. Para
No. 6 is extracted below for the purpose of convenience.
"6. The present applicant no.2, who is accused no.2,
is a non-public servant and is facing a prosecution for
commission of offence of collecting assets by a public
servant disproportionate to his known sources of
income. The public servant, the original accused no.1
and husband of present applicant, is no more alive
and, therefore, learned counsel for applicant no. 2
submits that the offence alleged against the applicant
cannot be proved. Though, learned APP disagrees, he
could not show to me as to how the offence of
abetment as alleged against the applicant no. 2 could
be proved in the absence of the public servant,
deceased applicant no. 1 or accused no. 1. If it is the
case that the main offence of amassing illegal wealth
disproportionate to the known sources of income
cannot be proved by the prosecution against the
public servant, i.e. accused no. 1, having regard to the
nature of allegations made against applicant no. 2,
offence of abetment of the offence can obviously be
not proved against the person who is not a public
servant, i.e. accused no.2. Allegations against
applicant no. 2 or accused no. 2 are that she abetted
the commission of offence by her husband, the
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accused no. 1, by intentionally aiding him to amass
the wealth. The intentional aiding was in the nature
of holding in her name the assets purchased by her
husband using ill-gotten money. The fact that funds
used for purchasing assets were supplied by the
husband, the deceased public servant, has to be
proved first in this case. It cannot be proved in the
absence of deceased public servant and, therefore,
offence of abetment of the nature alleged against his
wife, the non-public servant, cannot also be proved."
12 The Co-ordinate Bench of this Court has held that the
main offence of amassing illegal wealth disproportionate to the
known sources of income cannot be proved by the prosecution
against the public servant, i.e. accused No.1, having regard to the
nature of the allegations made against accused No.2. It is held that
the offence of abetment of the offence can obviously be not proved
against the person who is not a public servant. It is held that this
charge cannot be proved in the absence of deceased public servant
and therefore, offence of abetment against the wife cannot also be
proved. Learned APP submitted that this observation is per
incuriam inasmuch as the settled legal position is different from
what has been set out in para 6. It is seen that the Co-ordinate
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Bench in support of this conclusion has placed reliance on the
decision in the case of Amara Krishna Mohan Rao and Others .vs.
State of A.P.2
13 In order to appreciate the submissions advanced by the
learned APP it would be necessary to consider the issue by doing the
survey of the reported decisions of the Apex Court as well as the
High Courts. In the case of P. Nallammal and Another .v/s. State
Represented by Inspector of Police 3, the Hon'ble Apex Court has
held that clause (b) of Section 3(1) of the P.C. Act encompasses the
offences committed in conspiracy with others and by abetment of
"any of of the offences" punishable under the P.C. Act. If such
conspiracy or abetment of "any of the offences" punishable under
the P.C. Act can be tried "only" by the Special Judge, it is therefore
inconceivable that the abettor or the conspirator can be delinked
from the delinquent public servant for the purpose of trial of the
offence. In the case on hand the offences alleged to have been
committed by the accused Nos. 1 and 2 falls in the category of the
2 2012 Cri.L.J. 969
3 (1999) 6 SCC 559
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offences provided under Section 3(1) of the P.C. Act.
14 During the course of argument it was pointed out that
the view taken by the Co-ordinate Bench in the decision of Prakash
Ambagade (supra) runs counter to the judicial pronouncements of
this Court as well as the Supreme Court. It would therefore be
necessary to consider those decisions.
15 The first decision is of the Division Bench of Madhya
Pradesh High Court in the case of Pankaj Pathak .v/s. The State of
Madhya Pradesh, decided on 28.01.2013 (Cri revision No. 2020 of
2012). Para No. 6 and 7 of the decision would be relevant. The
same are extracted below
"6. Under the Indian Penal Code abetment of an
offence is a separate substantive offence. The
Supreme Court in the case of Faguna Kanta Nath
(supra) has categorically held that under the Indian
Law for an offence of abetment it is not necessary
that the offence should have been committed and a
man may be guilty as an abettor whether the offence
is committed or not. The Supreme Court later again
in the case of Jamuna Singh (supra) has reiterated
that it cannot be held in law that the person cannot
ever be convicted of abetting a certain offence when
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the person alleged to have committed that offence in
consequence of the abetment has been acquitted.
The law on the point is, thus, settled that a person
can very well be convicted of abetting an offence
even though a person alleged to have committed that
offence has been acquitted. Applying the same
analogy, a person can also be convicted of abetting an
offence even in the event of the death of principal
accused during the trial who allegedly committed
that offence.
7. In the present case, as already stated above,
the allegation of respondent is that the applicant
alongwith his co-accused brother Prashant Pathak
not only abetted their father G. P. Pathak (main
accused) in committing the offences under sections
13(1)(e) and 13(2) of the Act, they also deposited in
different accounts fake receipts and vouchers
regarding agricultural produce showing them as real
and for this charge under section 471 of the Indian
Penal Code has been framed against them. In P.
Nallammal (supra) the Supreme Court has clearly
held that a non-public servant can also be tried for
abetment of an offence under section 13(1)(e) of the
Act. For these reasons, we are of the considered view
that the above referred cases cited on behalf of the
applicant do not help him. In the fact situation of the
case, the trial court has rightly dismissed the
applicant's application for his discharge of the
offences under section 109 of the Indian Penal Code,
1860 read with sections 13(1)(e) and 13(2) of the
Act and section 471 of the Indian Penal Code, 1860.
It is reported that now the evidence of 39
prosecution witnesses have been recorded. The trial
court is, therefore, expected to conclude the trial
expeditiously."
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16 The offences in the case before the Madhya Pradesh
High Court were under Sections 109 and 471 of the I.P.C. In that
case also the principal offender, the Government Servant, had died.
The accused, roped in with the aid of Section 109 read with Section
13 (1)(e) read with Section 13 (2) of the P.C. Act, had applied for
the discharge. The Division Bench of the Madhya Pradesh High
Court held that the offences under Section 109 read with Section 13
(1)(e) read with Section 13 (2) of the P.C. Act would not get abetted
on the abatement of the prosecution against the deceased
Government Servant. The Madhya Pradesh High Court has in
support of this conclusion relied upon the decisions of the Hon'ble
Apex Court in the case of Faguna Kanta Nath .v/s. State of Assam,
reported in, AIR 1959 SC 673, Jamuna Singh .v/s. State of Bihar,
reported in, AIR 1967 SC 553 and P. Nallammal (supra).
17 The identical question fell for the consideration of the
Division Bench of the High Court of Orissa in the case of Aarti
Sahoo @ Behera .v/s. State of Orissa (VIG), reported in, 2019 (1)
ILR-CUT 694. The principal offender in the said case was charged
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for the offence punishable under Section 13 (1)(e) read with section
13 (2) of the P.C. Act and the second accused was charged with the
aid of Section 109 of the I.P.C. The accused persons were husband
and wife. The husband died during the pendency of the
proceedings. The wife made an application and prayed that the
proceeding against her would also get terminated on the death of
the Government Servant. The special Court had rejected the said
application. Para Nos. 2, 7, 8 and 9 of the decision would be
relevant. The same are extracted below.
"2. Brief facts of the case is that a criminal
case under Sections 13(1)(e) read with 13(2) of the
P.C. Act and Section 109 of the IPC was initiated
bearing T.R.No.15 of 2008 in the Court of the
learned Special Judge, Special Court, Cuttack against
the petitioner and her late husband. Obviously, the
allegation was that the husband of the petitioner,
who was a public servant, was in possession of
disproportionate assets and hence, charge-sheet filed
against him under Section 13(1)(e) read with 13(2)
of the P.C. Act. Whereas most of the properties
stands in the name of the petitioner, who is not a
public servant and admittedly, she is not an income
tax assessee, the charge under Section 13(1)(e) read
with 13(2) of the P.C. Act and Section 109 of the
IPC has been framed against her. Fifty-seven
witnesses have been examined. The accused-public
servant, who happens to be the husband of the
petitioner died and the case abated against him.
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Thereafter, the present petitioner filed an application
before the learned Special Judge, Special Court,
Cuttack that the criminal case cannot be continued
against her, in view of the death of her husband, the
main accused. That application was heard and
disposed of by the learned Special Judge, Special
Court, Cuttack on 09-08-18. While dealing with the
same, the learned Special Judge, Special Court,
Cuttack said that even in case of death of the main
offender, the case shall stand against the abettor.
07. Moreover, in the case Wakil Yadav and
another v. State of Bihar, (2001 SCC (Cri.) 1499),
the Hon'ble Supreme Court held that abetment to an
offence of corruption was itself a distinct offence for
which a charge could be framed. Now, in this case,
even if the charge under Section 13(1)(e) read with
13(2) of the P.C. Act could not be proved, Section
13(1)(e) read with 13(2) of the P.C.Act and Section
109 of the IPC being separate and distinct charge,
the trial is to be continued.
08. Similarly, Mr. Srimanta Das, learned
Senior Standing Counsel for the Department of
Vigilance Department brings to the notice of this
Court on a reported judgment rendered by Hon'ble
Justice Shiv Narayan Dhingra of High Court of
Delhi in the case of SIDDARTH VERMA v. C.B.I. ,
2010 (4) CCR 214, wherein it has been held:
"I consider that learned Special Judge rightly
dismissed the application of the petitioner for
discharge. Charges were framed against two accused
persons, against one for substantive offence and
against other for abetment. If the main accused has
died, that does not mean that substantive offence
stands wiped out. The offence committed by the
deceased, accused of amassing wealth through
corrupt means, does not stand wiped out and the
wealth still stands there in the hands of LR of the
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deceased /accused and the role of the petitioner of
acting as a conduit for amassing wealth for his father
can be proved by CBI during trial. I, therefore, find
no force in this petition. The petition is hereby
dismissed."
09. In view of such verdicts/
pronouncements and our discussions made above, we
are of the opinion that we cannot pass any order to
quash the aforesaid proceeding against the petitioner
under the Special Courts Act, 1979."
18 It is to be noted that the Division Bench of the
Orissa High Court has considered the decision of the Single Bench
of the Delhi High Court in the case of Siddharth Verma .vs/. CBI,
reported in, 2010 4 CCR 214. This decision of the Delhi High
Court has been relied upon by the learned APP. Wherein it is held
that if the main accused died, that does not mean that the
substantive offence stands wiped out. The offence committed by
the deceased, accused of amassing wealth through corrupt means,
does not stand wiped out and the wealth still stand there in the
hands of L.R. of the deceased and the role of the L.R. of acting as a
conduit for amassing wealth of his father can be proved against them
during the trial. The Division Bench of the Orissa High Court has
considered the decision of the Hon'ble Apex Court in the case of
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Wakil Yadav .v/s. State of Bihar4. In this case, the Hon'ble Apex
Court has held that the abetment to an offence of a corruption was
itself distinct offence for which a charge could be framed. It is held
that even if the charge under Section 13 (1)(e) read with Section 13
(2) of the P.C. Act could not be proved even then Section 13 (1)(e)
read with Section 13 (2) of the P.C. Act and Section 109 of the
I.P.C., being separate and distinct charge, the trial for those offences
has to be continued. The law laid down by the Hon'ble Apex Court
in the case of Wakil Yadav (supra) is required to be borne in mind
while appreciating the submission of the learned APP that the
decision in the case of Prakash (supra) was rendered without
considering this settled position in law.
19 There is one more decision of the Co-ordinate Bench of
the Bombay High Court in the case of Maushami Amarnath
Batabyal .v/s. State of Maharashtra, reported in, 2005 SCC
ONLINE BOM 913 (Criminal Revision Application No. 513 of
2002, decided on 08.08.2005). The facts of this case and the facts
4 (2001) SCC (Cri.) 1499
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of the case on hand are identical. The accused No. 1 was the
husband. The accused No.2 was the wife. The accused No.1
husband, who was the Government Servant, died on 28.07.2002.
The wife applied before the Court for termination of proceedings
against her because the proceedings had abated against her husband.
The wife was charged for the offences under Section 109 of the
I.P.C. read with Section 13 (1)(e) read with section 13 (2) of the
P.C. Act. Co-ordinate Bench in this case considered the numerous
decisions of the Hon'ble Apex Court as well as of the various High
Courts. For the purpose of proper understanding it would be
necessary to extract para Nos. 7 to 12 of this judgment. Para Nos. 7
to 12 reads thus:
"7. The next question as is required to be addressed
is, what is the consequence or effect of such
abatement of the trial. There is no provision either in
the Code or any other law brought to my notice,
which provides for consequences of abatement of
criminal proceedings. Expression "abatement" is not
defined in the Act or the Code. That leaves us to rely
on the dictionary meaning of expression "abate". The
Judicial Dictionary, 12th Edition of KJ. Aiyar's has
spelt out the meaning of expression "abate" as
follows:-
"Abate: is a generic term derived from French word
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"Abatre" and signifies to quash, to beat down or
destroy. "Abate" means to throw down, to beat
down, destroy or quash (Black's Law Dictionary,
Fifth Ed.). To diminish or take away, to prostrate, to
beat down remove or destroy; also to let down or
cheapen the price in buying or selling. [Encyc. L.,
Stroud, P-5].
To prostrate, break down, remove, or destroy;
also to let down or cheapen the price in buying or
selling. [Wharton's Law Lexicon, 1976 Reprint Ed.].
Expression "abatement" has been separately
spelt out, in the same dictionary. "Abatement of
criminal proceedings" has been termed to mean their
termination without a decision on the merits and
without the assent of the prosecutor. If this is the
legal position or meaning of abatement, it is
incomprehensible as to how the abatement of
should result in terminating the entire action, even
against the surviving co-accused independently
charged for abetment under Section 109 of I.P.C.
Indubitably, the abatement of criminal proceedings
as against one of the accused even if principal
accused, by itself cannot be the basis to terminate the
entire criminal action, assuming that the remaining
accused (co-accused) are charged only for abetment
under Section 109 of L.P.C.
8. To get over this position, Counsel for
the Applicant relied on the decision of the Apex
Court in the case of Central Bureau of Investigation
v. V.C. Shukla, AIR 1998 SC 1406. In my opinion,
this decision is of no avail to the Applicant herein. In
that case, the gravamen of the charge against the co-
accused Jains was that they had entered into two
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separate agreements one with Shri Shukla and the
other with Shri Advani, in terms of which they were
to make certain payments to them as a gratification
other than legal remuneration as a motive or reward
for getting their favour while they were 'public
servants and in pursuance of the said agreements
payments were actually made to them. The Court on
analysing the material on record positively found that
the prosecution was not able to make out prima facie
case to prove that shri Advani and Shri Shukla were
parties to such conspiracy. On this finding, the Court
proceeded to hold that, the theory of conspiracy as
framed/sought to be framed cannot stand also against
the Jains for the simple reason that in a conspiracy
there must be atleast two parties. In other words, the
exposition in the said decision is on the fact situation
of that case. In paragraphs 49 to 51 of the same
judgment, the Apex Court has analysed the relevant
provisions including Section 107 of the I.P.C. and
noted that, as the case before it fell within the third
clause and not the first and second clause, the co-
accused who is charged of abetment under Section
109 ought to succeed along with the principal
offender. The legal position as to the purport of
charge of abetment has been considered by the Apex
Court in Jamuna Singh v. State of Bihar, reported in
AIR 1967 SC 553. On analysing the relevant
provisions such as Sections 107 to 109 of I.P.C. and
the decisions on the point, it is observed by the Apex
Court that it cannot be held in law that a person
cannot ever be convicted of abetting a certain offence
when the person alleged to have committed that
offence in consequence of the abetment has been
acquitted. It is further held that the question of the
abettor's guilt would depend on the nature of the act
abetted and the manner in which the abetment is
made.
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It is only in the case of a person abetting an
offence by intentionally aiding another to commit
that offence that the charge of abetment against him
would be expected to fail when the person alleged to
have committed the offence is acquitted of that
offence. The Apex Court has also noted that the
offence of abetment is complete when the alleged
abettor has instigated another or engaged with
another in a conspiracy to commit the offence. It is
not necessary for the offence of abetment that the act
abetted must be committed. Reference can be
usefully made to another decision of the Apex Court
which has been pressed into service by learned
A.P.P., in the case of Gallu Sah v. State of Bihar, AIR
1958 SC 813. Even in this decision in paras. 7 and 8,
the Apex Court examined the purport of the offence
of abetment. Referring to the Calcutta High Court
decision in the case of Umadasi Dasi v. Emperor,
AIR 1924 Cal.1031, the Apex Court noted that in
the majority of cases the general rule that where a
person is charged with having committed an offence
and another is charged with having abetted him in
the commission thereof, and the prosecution fails to
substantiate the commission of the principal offence
there can be no conviction for abetment, might hold
good; but there are exceptions to the general rule,
particularly when there is evidence which
satisfactorily establishes that the offence abetted is
committed and is committed in consequence of the
abetment.
9. Before the lower Court reliance was placed by
the Applicant on the decision of the High Court
reported in (1999) Vol.101 (2) Bom. L.R.223 in the
case of State of Maharashtra v. Ramdas Shankar
Kurlekar and ors. In that case the charge against the
principal accused was not proved, for which reason
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the co-accused who was charged only as an abettor
was also granted benefit. That decision is again on
the facts of that case as the role of the co- accused
was stated to be only one of accompanying P.W. 1 in
the car to receive the amount.
10. In my opinion, the decisions pressed
into service by the Counsel for the Applicant, are
inapposite. In the first place, the question of granting
benefit to the co-accused charged with abetment,
relying on the circumstance of abatement of the
criminal proceedings (trial) as against the principal
accused, cannot be countenanced. This is so because,
such benefit can be granted only when the principal
accused was to be acquitted of the principal offence
for which he has been charged. In the case of
abatement of criminal proceedings, however, it is not
termination of proceedings with a decision on merit
with the assent of the Public Prosecutor. In other
words, abatement of criminal proceedings does not
result in acquittal of the concerned accused. The
scheme of Section 394 of the Code makes it amply
clear that abatement of Appeal against the deceased
accused does not entail in ab-initio dissolution of the
criminal action. For, the legal representatives are
given option to contest the appeal in so far as
sentence of fine is concerned. Similarly, it is well
settled that the remedy of revision can be pursued
inspite of death of the accused. Thus understood, the
principle invoked by the Applicant to claim benefit,
relying on the abovesaid decisions is unavailable. A
priori, the Applicant can succeed only if the
prosecution were to fail in discharging the initial
burden to establish the charge against the accused.
Even if the prosecution failed to discharge the initial
burden to establish the charge as against the principal
offence, even then it will be imperative to
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demonstrate from the record that the prosecution
case as against the applicant does not fall in the first
or the second clause of Section 107 of I.P.C. and
would only fall under the third clause thereof. No
such argument was canvassed before the Lower
Court or any serious attempt in that behalf has been
made before this Court. The only document which is
placed on record before this Court along with the
impugned order, is the charge as framed against the
accused by the Special Judge. That document cannot
be the sole basis to consider the claim of the
Applicant in this behalf. Be that as it may, all those
questions will have to be addressed by the
appropriate Court as and when occasion arises.
11. The learned Counsel for the Applicant
would rely on the dictum of the Apex Court in the
case of Bondada Gajapathi Rao v. State of Andhra
Pradesh reported in AIR 1964 S.C. 1945. In para 9
of the said decision it is observed that in so far as
personal punishment (other than a fine) is concerned
that stands dissolved by the death of the offender and
an appeal to get that punishment set aside becomes
infructuous and abates. This decision is of no avail
to the Applicant. In that case the Court was called
upon to consider whether the revision petitions and
some appeals from sentences of fine might be
continued by the legal representatives on the death
of the accused pending such proceeding. In other
words, the abovesaid exposition in the said decision
is in the context of the issue considered in that
judgment. This position is amply clear from the
observation in the same paragraph 9 of the decision a
little earlier where it is stated as
".... it is not my purpose to consider, whether in the
absence of any direct injury to the living every
criminal proceeding must come to an end after the
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death of the accused whether before this conviction
or after ...."
Be that as it may, that decision is not an authority on
the point in issue under consideration.
12. That takes me to the last submission
canvassed on behalf of the Applicant. According to
the Applicant, even if the Applicant is required to
face the trial, the trial would be unjust and the
Applicant will suffer grave prejudice due to the
absence of the co- accused (accused No. 1) who was
primarily required to satisfactorily account of
pecuniary resources or property disproportionate to
his known sources of income, being a public servant.
Indeed, Section 13(1)(e) is an offence which is
committed by a public servant. A public servant is
said to have committed the offence of criminal
misconduct, if he or any person on his behalf, is in
possession or has, at any time during the period of
his office, been in possession for which the public
servant cannot satisfactorily account, of pecuniary
resources or property disproportionate to his known
sources of income. That, however, does not mean
that persons other than the public servant cannot be
tried for the offence under the Act along with the
principal offender, who is a public servant. The Apex
Court in the case of P. Nallammal v. State, reported
in AIR 1999 SC 2556 and in State of UP. v. Udai
Narayan reported in 1999 (8) SCC 741 has held that
a person who is not a public servant can be
prosecuted under the provisions of the Act. In so far
as the rule of evidence to establish offence under
Section 13(1)(e), the same is no more res integra.
Burden is very limited on the prosecution. It is
sufficient for the prosecution to show that the
accused is a public servant; the nature, and the extent
of the pecuniary resources or property which were
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found in his possession or any person on his behalf,
what were his known sources of income (known to
the prosecution); that such resources or property
found in possession were disproportionate to his
known sources of income. The burden then shifts on
the public servant to satisfactorily account, of
pecuniary resources or property disproportionate to
his known sources of income. If the public servant
fails to do so, the legal presumption against such
Government servant would operate, resulting in
recording a finding of guilt and conviction. A priori,
merely because the principal accused is not available
for trial, that would not enure to the benefit of the
co-accused named as abettor under Section 109 of
the I.P.C. The test to consider this argument, as is
rightly contended by the learned P.P., is, in a given
case where the principal accused is available for trial
and allows the matter to go by default or for that
matter fails to satisfactorily account, of pecuniary
resources or property disproportionate to his known
sources of income, the co-accused named with charge
of abetment under Section 109 will be bound by
such finding against the principal accused.
Thus understood, the presence or absence of
the principal accused for the trial cannot be the basis
to proceed or not to proceed against the co- accused
charged of abetment under Section 109 of I.P.C.
Such co-accused will have to stand the trial on his
own. If he so desires, it is open to him to produce
evidence to satisfactorily account of pecuniary
resources or property disproportionate to the known
sources of the principal accused. In the present case,
the co-accused is none other than the wife of the
principal accused. The prosecution claims that the
real owner of the resources or property in the name
of the Applicant was the Accused No. 1 who was the
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public servant. Even otherwise, the trial ought to
proceed against the Applicant herein in accordance
with law and as rightly observed by the Special Judge
after recording of evidence and hearing the parties
the final conclusion on the relevant aspects can be
arrived at the stage of judgment."
20 The Co-ordinate Bench has considered the decision of
the Bombay High Court in the case of State of Maharashtra .v/s.
Ramdas Kurlekar (supra) and the decision of the Hon'ble Apex
Court in the case of CBI .v/s. V. C. Shukla (supra). The Co-
ordinate Bench held that presence or absence of the principal
accused for the trial in such an offence cannot be the basis to
proceed or not to proceed against co-accused charged of abetment
under Section 109 of the I.P.C. It is held that such co-accused will
have to stand the trial on his own. It is held that the offence under
Section 109 read with Section 13 (1)(e) read with section 13 (2) of
the P.C. Act is separate distinct and substantive offence. It is held
that on the abatement of the proceedings against the principal
accused, who happened to be Government Servant, in such a case
the proceeding against the co-accused cannot be terminated.
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21 The Hon'ble Apex Court in the recent decision in the
case of State of Tamil Nadu .v/s. Nirmala ATC, reported in, 2018
ALL MR Cri. 440 has categorically held that death of main accused
does not result in abatement of trial. In the case before the Apex
Court the charge-sheet was filed against the public servant and non
public servant under the provisions of the prevention of corruption
Act and Section 109 of the I.P.C. The main accused, the public
servant, died during the pendency of the revision application before
the High Court, raising a challenge to the order of discharge of the
accused. The High Court dismissed the revision application on the
ground that the death of the main accused has resulted in abatement
of the trial and nothing remained to be considered. The Hon'ble
Apex Court held in this case that the death of the main accused does
not result in abatement of trial against the co-accused, who have
been roped in by invoking Section 109 of the I.P.C.
22 In the above context it would be necessary to consider
the two decisions of the Hon'ble Apex Court. In these decisions
the nature of the offence of abetment defined under I.P.C. as and
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when invoked with the offences under the P.C. Act has been
considered. These two decisions are in the case of P. Nallammal
(supra) and Jamuna Singh (supra). Para No. 10 of the decision in
the case of P. Nallammal (supra) is relevant. It is extracted below.
"10. Thus, clause (b) of the sub-section
encompasses the offences committed in conspiracy
with others or by abetment of "any of the offences"
punishable under the P.C. Act. If such conspiracy or
abetment of "any of the offences" punishable under
the P.C. Act can be tried "only" by the Special Judge,
it is inconceivable that the abettor or the conspirator
can be delinked from the delinquent public servant
for the purpose of trial of the offence. If a non-
public servant is also a member of the criminal
conspiracy for a public servant to commit any offence
under the P.C. Act, or if such non-public servant has
abetted any of the offences which the public servant
commits, such non-public servant is also liable to be
tried along with the public servant before the court
of a Special Judge having jurisdiction in the matter."
The para 6 of the decision in the case of Jamuna Singh
(supra) would be relevant. It is extracted below.
"6. It cannot be held in law that a person cannot ever
be convicted of abetting a certain offence when the
person alleged to have committed that offence in
consequence of the abetment has been acquitted. The
question of the abettor's guilt depends on the nature
of the act abetted and the manner in which the
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abetment was made. Under s. 107 I.P.C. a person
abets the doing of an act in either of three ways which
can be: instigating any person to do an act; or
engaging with one or more person in any conspiracy
for the doing of that act; or intentionally aiding the
doing of that act. If a person instigates another or
engages with another in a conspiracy for the doing of
an act which is an offence, he abets such an offence
and would be guilty of abetment under s. 115 or s.
116 I.P.C., even if the offence abetted is not
committed in consequence of the abetment. The
offence of abetment is complete when the alleged
abettor has instigated another or engaged with an
other in a conspiracy to commit the offence. It is not
necessary for the offence of abetment that the act
abetted must be committed. This is clear from
Explanation 2 and illustration (a) thereto, to s. 108
I.P.C."
23 The law laid down in the above decisions of the
Hon'ble Apex Court has to be followed while deciding the question
of the nature, involved in this case before me. It is therefore crystal
clear that the offence under Section 109 of the I.P.C. is separate,
distinct and substantive offence. The offence gets attracted if any of
the requirements of Section 107 of the I.P.C. is satisfied. In my
view, if this settled position is applied to the facts of the case on
hand, then the offences alleged to have been committed by the
accused would squarely fall within the ambit of definition of the
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abetment under Section 107 of the I.P.C. It is to be noted that the
case of the prosecution is that they abetted the offence committed
by the Government Servant of the accumulation of the assets
disproportionate to the known sources of the income of the
Government servant. The properties standing in the name of the
accused Nos. 1 and 2 have been specifically listed in the charge-
sheet. The enormity of the offence committed in this case can be
seen on the basis of the evidence collected by the investigating
officer with regard to the properties purchased by the deceased
Government Servant during his service tenure. According to the
prosecution, accused No. 1 and 2 abated the commission of the
offence by the Government Servant defined under Section 13 (1)(e)
read with Section 13 (2) of the P.C. Act. In this case, the principal
offence against the accused is under Section 109 of the I.P.C. read
with the offences under Section 13 (1)(e) read with section 13 (2) of
the P.C. Act. The basic contention of the accused is that after the
death of the Government Servant they would not be in a position to
effectively and meaningfully meet the case of the prosecution.
According to them, their prosecution in the absence of the
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Government Servant would cause prejudice to them. It is to be
noted that the Co-ordinate Bench of the Bombay High Court in the
case of Maushami Batabyal (supra) has dealt with this aspect in para
No.12. In my view the observations made by the Co-ordinate
Bench in para 12 of the decision would take care of this grievance as
well.
24 The settled legal position is therefore that the offence
against the non Government Servant under Section 109 read with
Section 13 (1)(e) read with section 13 (2) of the P.C. Act is separate
distinct and substantive offence. The offence under Section 109 of
the I.P.C. being separate distinct and substantive offence and the
LR's being in possession of the ill-gotten property, the commission
of the offence would not get wiped out. They would be required to
face the trial. The prosecution can prove the charge against them by
adducing the evidence. It is to be noted that simply because of the
death of the Government Servant pending the prosecution the
prosecution cannot be said to be handicapped in adducing the
evidence of accumulation of the assets disproportionate to the
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known sources of income of the public servant. The prosecution
can lead the evidence and prove it. On the basis of such evidence,
the charge against the accused Nos.1 and 2 would be required to be
considered. To prove the basic fact of accumulation of the property,
dis-proportionate to the known sources of the income of the
Government Servant, would be the duty of the prosecution. The
prosecution cannot be denied the opportunity to prove it. In order
to prove the charge against accused No. 1 and 2 of abetment, the
prosecution can lead the evidence of accumulation of assets
disproportionate to the known sources of the income of the
deceased public servant. In my view, therefore, the learned APP is
right in submitting that the decision in the case of Prakash
Ambagade (supra) has been rendered without considering the
above stated legal position and as such per incuriam. On
appreciation of the submissions and on consideration of the law laid
down as stated above, it prima facie appears that the decision in the
case of Prakash Ambagade (supra) has been rendered without
considering the above stated legal position. With due respect, I
conclude that the decision in the case of Prakash Ambagade (supra)
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does not lay down the law consistent with the judicial
pronouncements of the Hon'ble Apex Court and the previous
decisions of the Bombay High Court and as such per incuriam.
Therefore, on this point, I am not inclined to accept the submissions
advanced by the learned Advocate for the accused.
25 The next important issue is with regard to the
jurisdiction of the Special Court. The identical issue fell for
consideration before the Co-ordinate Bench of Bombay High Court.
In the case of High Court on its own Motion .vs/. State of
Maharashtra, the Co-ordinate Bench has considered the decision in
the case of Jitendra Kumar (supra) and the decision in the case of
Nirmala ATC (supra). The Co-ordinate Bench has held that the
offences specified in clause (a) of Section 3(1) of the P.C. Act can be
provided in Chapter III of the P.C. Act namely the offence under
Sections 7, 8, 9, 10, 11, 12 and 13. It is held that Section 3 (1)
would include the offence punishable under the P.C. Act, the
conspiracy to commit the offence under the P.C. Act, attempt to
commit the offence under the P.C. Act and the abetment of any
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offence under the P.C. Act. It is held that therefor if the offences
alleged to have been committed are within the scope and ambit of
Section 3(1) of the P.C. Act then the special Court constituted
under Section 4 of the P.C. Act, would have exclusive jurisdiction to
try the said offences even against the non public servant. Learned
Co-ordinate Bench has reproduced the relevant observations from
para 30 of the decision in the case of Jitendra Singh (Supra). The
same can be profitably extracted for the purpose of understanding
the question in proper prospective. It reads thus:
"30. Thus, the scheme of the PC Act makes
it quite clear that even a private person who is
involved in an offence mentioned in Section 3(1) of
the PC Act, is required to be tried only by a Special
Judge, and by no other Court. Moreover, it is not
necessary that in every offence under the PC Act, a
public servant must necessarily be an accused. In
other words, the existence of a public servant for
facing the trial before the Special Court is not a must
and even in his absence, private persons can be tried
for PC as well as non-PC offences, depending upon
the facts of the case. We, therefore, make it clear
that it is not the law that only along with the junction
of a public servant in array of parties, can the Special
Judge can proceed against private persons who have
committed offences punishable under the PC Act."
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26 In my view, therefore, the submission advanced by the
learned Advocate for the applicant relying upon the decision in the
case of Jitendra Singh (supra) cannot be sustained.
27 The Hon'ble Apex Court in the case of HCL
Infosystem (supra) held that the special Court has jurisdiction to try
all P. C. Act offences and/or even non-P.C. Act offences allegedly
committed by a person other than a public servant. It is held that in
case of death of sole accused-public servant, the jurisdiction of the
special court is not affected. The special Judge can of course try non
P.C. Act cases alone against the non-public servant. In the case of P.
Nallamal (supra) on the point of jurisdiction it is held that clause (b)
of Section 3(1) encompasses the offences committed in conspiracy
with others by abetment of "any of the offences" punishable under
the P.C. Act. If such conspiracy or abetment of the "any of the
offences" punishable under the P.C. Act can be tried "only" by a
Special Judge, it is inconceivable that the abettor or the conspirator
can be delinked from the delinquent public servant for the purpose
of the trial of the offence. If a non-public servant is also a member
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of the criminal conspiracy for a public servant to commit any
offence under the P.C. Act, or if such non-public servant has abetted
any of the offences which the public servant commits, such non-
public servant is also liable to be tried along with the public servant
before the Court of a Special Judge having jurisdiction in the matter.
In my view, therefore, the submission advanced by the learned
Advocate for the accused Nos. 1 and 2 that special Judge will have
no jurisdiction to try the offence against accused Nos. 1 and 2
cannot be accepted. The submission runs counter to the settled
legal position. The offences committed by accused Nos. 1 and 2, as
per the prosecution, are fully covered within the ambit of Section
3(1) of the P.C. Act. According to the prosecution, they have
abetted the commission of an offences under the P.C. Act by the
Government Servant. Therefore, in this case, the special Court
alone will have a jurisdiction to try the case against the accused
Nos.1 and 2. Therefore, on this count also the submission advanced
by the learned Advocate for the accused Nos. 1 and 2 cannot be
accepted.
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28 This would now take me to the third point namely the
scope of inquiry while deciding the discharge application or framing
of a charge. In the context of the above factual position it would be
profitable to make useful reference to the decision of the Hon'ble
Supreme Court in the cases of Tarun Jit Tejpal Vs. State of Goa and
Another5; Niranjan Singh Karam Singh Punjabi, Advocate Vs.
Jitendra Bhimraj Bijjaya and Others6 and Sajjan Kumar Vs. Central
Bureau of Investigation7, wherein it has been held that appreciation
of evidence at the time of framing of the charge or while considering
discharge application, is not permissible. The Court is not permitted
to analyze all the material touching the pros and cons, reliability and
acceptability of the evidence. In the case of Tarun Jit Tejpal (supra),
it is held that at the time of consideration of the application for
discharge, the Court cannot act as a mouth piece of the prosecution
or act as a post office and may sift evidence in order to find out
whether or not the allegations made are groundless so as to pass an
order of discharge. It is held that at the stage of consideration of
application for discharge, the Court has to proceed with an
5 (2020) 17 SCC 556
6 (1990) 4 SCC 76
7 (2010) 9 SCC 368
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assumption that the materials brought on record by prosecution are
true and evaluate the said materials and documents with a view to
find out whether the facts emerging therefrom taken at their face
value disclose the existence of all the ingredients constituting the
alleged offences. At this stage, the Court is not expected to go deep
into the matter and hold that materials would not warrant a
conviction. It is held that what needs to be considered is whether
there is a ground for presuming that the offence has been
committed and not whether a ground for convicting accused has
been made out. It is further held that the law does not permit a
mini trial at the stage of deciding the discharge application or at the
time of framing of charge.
29 In order to consider the applicability of the above
settled legal position to the facts of the case, I have gone through the
record and proceedings. During the course of investigation the
evidence was collected against the principal accused as well as the
accused Nos. 1 and 2. The same has been compiled in the charge-
sheet. According to the prosecution, the accused Nos. 1 and 2 have
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abetted the offence of accumulation of the assets of Rs.49,08,291/-
(Rs. Fourty Nine Lacs Eight Thousand Two Hundred and Ninety
One only) disproportionate to the known sources of income of the
Government Servant. It is further pertinent to note that in the
charge-sheet the list of the properties possessed by the accused Nos.
1 and 2 has been provided. During the course of the investigation
they were offered an opportunity to explain their stand. They have
explained their stand. Similar opportunity was granted to the
Government Servant. He had also explained his stand before his
demise.
30 In the facts and circumstances, I am of the view that
this is not a fit case to discharge the accused Nos.1 and 2. They are
possessing the property and the assets acquired by ill-gotten means
by the deceased Government Servant. The material on record prima
facie indicates that they are liable to be prosecuted by invoking
Section 109 of the I.P.C. read with Section 13 (1)(e) read with
section 13 (2) of the P.C. Act.
revn.22.2014 judge.odt
31 In the fact and circumstances I do not find any
substance in the revision application. The learned Special Judge has
taken all the facts and circumstances into consideration. The order
passed by the special judge does not warrant interference. The
revision is devoid of merits. It is accordingly dismissed.
32 Considering the fact that the prosecution is pending
since 2011, the learned Judge is requested to dispose of the case
expeditiously and in any case within the period of six months from
the date of receipt of this order. It is made clear that the
observations made in this judgment are for the purpose of deciding
this application and therefore, the trial Court, at the time of
deciding the case on merits, shall not get influenced by the same, in
any manner.
33 The criminal revision application stands disposed of.
(G. A. SANAP, J.)
Namrata
