R. Vasudevan vs Cbi
2012 Latest Caselaw 3690 Del

*               THE HIGH COURT OF DELHI AT NEW DELHI

+                          CRL.M.C. 1281/2012

                                                 Date of Decision: 01.06.2012

R. Vasudevan                                         ..... Petitioner
                           Through:     Mr. Vijay Aggarwal with                  Mr.
                                        Gurpreet Singh, Advocates.

                           Versus
CBI                                                   ..... Respondent
                           Through:     Mr. Dayan Krishnan, ASC for the
                                        CBI.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J.

1. The present petition has been preferred against the order dated 25.02.2012, of the learned Special Judge, CBI whereby the application of the petitioner under Section 219 and 220 CrPC for a joint trial of FIR no. RC No. 1(A)/ 2010/ ACU-IX under Section 13(2) r/w 13(1)(e) Prevention of Corruption Act (hereinafter referred to as the "PC Act") and FIR no. RC No. CBI/ ACU IX/ N.D. 3(A)/ 2009 under Section 7, 8, 12, r/w 13(2) PC Act & 13(1)(d) of PC Act r/w Section 120-B IPC registered with Police Station CBI/ ACU-IX/ N.D, New Delhi, was dismissed for the reason that both the offences are distinct and cannot be tried jointly.

2. The FIR no. RC No. CBI/ ACU IX/ N.D. 3(A)/ 2009 under Section 7, 8, 12, r/w 13(2) PC Act & 13(1)(d) of PC Act r/w Section 120-B IPC was registered on the allegation that the petitioner had demanded and agreed to accept illegal gratification of Rs. 7 lacs, while functioning in the capacity of Member, Company Law Board. On the basis of the aforesaid FIR, searches were conducted in the residential premises of the petitioner at New Delhi and Chennai during 27.11.2009 to 1.12.2009 which led to the discovery of huge movable and immovable properties belonging to the petitioner and his wife. Thereafter, another FIR no. RC No. 1(A)/ 2010/ ACU-IX under Section 13(2) r/w 13(1)(e) PC Act, was registered against the petitioner alleging possession of assets by the petitioner, disproportionate to his known sources of income. Chargesheets were filed in both the cases separately. The petitioner filed an application under Section 219 & 220 CrPC before the learned Special Judge, CBI praying for a joint trial of both the cases. The said application was dismissed vide impugned order dated 25.02.2012. Hence, the present petition.

3. The learned counsel for the petitioner submitted that since the second FIR no. RC No. 1(A)/ 2010/ ACU-IX under Section 13(2) r/w 13(1)(e) PC Act came to be registered as a result of the searches conducted during the investigation in FIR no. RC No. CBI/ ACU IX/ N.D. 3(A)/ 2009 under Section 7, 8, 12, r/w 13(2) PC Act & 13(1)(d) of PC Act r/w Section 120-B IPC, this second FIR was an off shoot of the first FIR and formed a part of the same transaction and so the petitioner need be tried jointly in both the cases. It was further submitted that the investigation in the second FIR is

nothing, but a continuation of the first FIR. It was submitted that the documents and the witnesses cited in the charge sheets of both the cases being common to a large extent and hence to avoid any delay and prejudice as also on the principal of equity, the petitioner should be tried jointly for both the charges.

4. Drawing my attention to Section 219 & 220 CrPC, it was submitted that, both Section 13(1)(d) and Section 13(1)(e) PC Act, are punishable under the same section i.e. 13(2) PC Act with the same amount of punishment, thus they are of the same kind within the meaning of Section 219 CrPC and ought to be tried together. He relied upon Raja Dayanand v. State, 2004 (3) JCC 1886 and Adnan Bilal Mulla v. State of Maharashtra, 2006 Cri.L.J 564 in support of his submissions.

5. The learned counsel for the petitioner further submitted that both the offences were intrinsically connected as taking of illegal gratification results in possession of assets disproportionate to the known sources of income, and hence necessarily need to be tried together. It was further submitted that right under Section 31 Cr.P.C. and Section 71 IPC would be prejudiced if the petitioner was not tried together for both the offences.

6. Per Contra, the learned Special PP for the CBI submitted that both the offences are distinct in nature. The offence in FIR no. RC No. CBI/ ACU IX/ N.D. 3(A)/ 2009 under Section 7, 8, 12, r/w 13(2) PC Act & 13(1)(d) of PC Act r/w Section 120-B IPC was a trap case and the subsequent FIR no. RC No. 1(A)/ 2010/ ACU-IX under Section 13(2) r/w 13(1) (e) PC Act was

a case of disproportionate assets against the petitioner. It was submitted that in disproportionate assets case, there is a check period for the offence, which in the present case was between the years 1-10-1988 to 1-12-2009, whereas the trap case was in the year 2009. The mere fact that the disproportionate assets case was registered subsequent to the trap case, does not make them a part of the same offence, as the ingredients of both the offences are also distinct.

7. I have heard the learned counsel for the petitioner and the Special PP for the CBI and perused the record.

8. Section 220 CrPC provides for clubbing of offences which form a part of the same transaction. It reads thus,

220. Trial for more than one offence.

(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for, every such offence.

(2) *** (3) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with, and tried at one trial for, each of such offences.

(4) Several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with, and tried at one trial for the offence constituted by such acts when combined, and for any offence constituted by any one, or more, or such acts.

(5)***

9. In the present case, it was contended by the learned counsel for the petitioner that, as both the offences under Section 13(1)(d) and Section

13(1)(e) PC Act are punishable under Section 13(2) PC Act, hence they shall be considered to be of the same kind in view of Section 219 CrPC and be tried together. This contention of the learned counsel for the petitioner is misplaced and misconceived. The offences under Section 13(1)(d) and 13(1)(e) of the PC Act, although relate to the same subject, are distinct in their application and ingredients.

10. In the case of V.K. Puri v. CBI (2007) 6 SCC 91, the Hon'ble Supreme Court held thus,

"9. A distinction exists between a case filed under Sections 13(1)(c) and 13(1)(d) of the 1988 Act, on the one hand, and Section 13(1)(e) thereof, on the other.

Ingredients of the offence under Section 13(1)(e) of the 1988 Act are:

(i) The accused is a public servant;

(ii) The nature and extent of the pecuniary resources of property found in his possession;

(iii) His known sources of income, i.e., known to the prosecution.

(iv)Such resources or properties found in possession of the accused were disproportionate to his known sources of income.

Once, however, the aforementioned ingredients are established by the prosecution, the burden of proof would shift on the accused to show that the prosecution case is not correct.

13. In a case involving Section 13(1)(e) of the 1988 Act, what is necessary is as to whether keeping in view the period in question, commonly known as check period, the public servant has acquired wealth which is disproportionate to his known sources of income. It has nothing to do with individual case of bribery. It has nothing to do with a series of acts culminated into an offence. Each Court, where a part of the offence has been committed, would, therefore, be entitled to try an accused".

11. Further, in a case under Section 13(1)(e) PC Act, once the ingredients of the offence are established by the prosecution, the burden of proof, shifts on the accused person to account for the pecuniary resources and properties found in his possession in the relevant check period. However, in cases where the public servant is alleged to have taken illegal gratification, the burden of proof to prove the offence under Section 13(1)(d) of the PC Act is on the prosecution and not on the accused. Hence, the approach of the prosecution, in both the cases will be different and independent.

12. With regard to the contention of the petitioner's learned counsel that the witnesses are common, it is observed that only a handful of witnesses and documents in the two cases overlap. The majority of the witnesses and evidence in both the cases are independent of each other. Further, the contention of the petitioner's counsel that his defense in one case will be revealed for the other is again untenable and misplaced, as the facts of both the cases are independent. Also, Section 31 CrPC and Section 71 IPC have no application, as both the offences for which the petitioner has been charged are distinct offences and not parts of same transaction, as discussed above.

13. The case of Raja Dayanand (Supra) is distinguishable from the present case as that was a case under Arms Act and Section 302 IPC, and also distinguishable on facts. Also, in the case of Adnan Bilal Mulla (Supra), the Bombay High Court observed that there was a common thread running through all the three bomb blasts in Mumbai due to

proximity of time, unity of purpose and design and continuity of acts. In the present case, none of these ingredients are present in the two offences, which are sought to be clubbed together. Hence, no help can be sought by the learned counsel for the petitioner from the cases cited by him.

14. In view of the above observations, I find no infirmity with the order of the learned Special Judge.

15. Hence, dismissed.

M.L. MEHTA, J.

JUNE 01, 2012 hg/ss