Paresh Chandra Bhokta vs Union Of India Through Cbi
2023 Latest Caselaw 4177 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            Cr. Appeal (SJ) No. 379 of 2023

Paresh Chandra Bhokta                                                  ... Appellant
                                       -Versus-
Union of India through CBI                  ...                          ... Respondent

     CORAM :- HON'BLE MR. JUSTICE RATNAKER BHENGRA

           For the Appellant :- Mr. Indrajit Sinha, Advocate;
                                Mr. Ankit Vishal, Advocate
           For the UoI       :- Mr. Anil Kumar, ASGI;
                                Ms. Chandana Kumari, AC to ASGI
                                   ...

10/07.11.2023: IA No. 5571 of 2023 Heard the learned counsel for the appellant as well as the learned counsel for the Union of India on the interlocutory application filed by the appellant for suspension of sentence during the pendency of this criminal appeal.

2. This criminal appeal was directed against the judgment of conviction dated 07.06.2023 and the order of sentence dated 14.06.2023, passed by the learned Special Judge, CBI, Dhanbad in connection with RC Case No. 05(A)/2007-AHD-R, whereby and whereunder, the appellant has been convicted under section 13(2) read with section 13(1)(e) of the Prevention of Corruption Act, 1988 and sentenced to undergo RI for four years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, further sentenced to undergo SI for six months.

3. The learned counsel for the appellant has submitted that the appellant has been falsely implicated in the present case. The learned counsel has further submitted that the prosecution has completely failed to prove the authorization letter to the then Superintendent of Police to Investigating Officer authorizing to investigate the case during the course of trial. Neither the authorization letter has been exhibited nor a single competent witness has stated anything about the said authorization letter. The learned counsel has further submitted that the second proviso appended to section 17 of the Prevention of Corruption Act, 1988 states that an offence referred to in clause (e) of sub-section (1) of section 13 shall not be investigated without the order of a police officer not below the rank of a Superintendent of Police. The learned counsel has referred to and relied upon the judgment of the Hon'ble Apex Court in "State Inspector of Police, Vishakhapatnam v. Surya Sankaram Karri" (2006) 7 SCC 172. The learned counsel has further submitted that the learned trial Court has failed to consider that the appellant has also earned considerable income from the house rent during the check period which has been verified by the CBI during the investigation and CBI has also computed that the appellant has earned Rs.6,09,000/- from the house rent, however, the learned trial Court has considered only Rs.3,42,400/- as income from the house rent during the check period. The learned counsel has further submitted that the CBI has intentionally shown the higher figure of Rs.14,10,000/- at item no.2 of immovable property for construction of ground and first floor of house situated at Castair Town, Doghar. In this connection, according to Exhibit-47 which is sale deed dated 14.12.1990 the property situated at Castair Town has been purchased by the Meera Devi as a fully constructed ground floor house along with entire fitting and furniture and the map of the constructed house is part of the said sale deed. As such, only the first floor of the said property was constructed during the check period but the valuer of the CBI wrongly assessed the estimated cost of construction of the ground floor of said property in Exhibit 42. The learned counsel has further submitted that as per Exhibit-B the construction cost of the first floor of the said property situated at Castair Town, Deoghar is Rs.3,09,000/- only as such the total construction cost of the first floor of the said building during the check period is only 3,09,000/- instead of Rs.14,10,000/- in this head which has not been considered by the learned trial Court. The learned counsel has further submitted that the learned trial Court has failed to consider that the actual total construction cost of the house situated at Bumpass Town, Deoghar as per the documents exhibited during the course of trial is only Rs.19,20,000/- whereas the CBI has estimated higher cost of the property i.e. Rs.31,69,000/-. The learned counsel has further submitted that the learned trial Court did not consider the agricultural income of the accused during the check period, whereas as per deposition of DW-5 there was an agricultural income of the appellant from the year 1987 to 2006 and all the income from 1987 to 2006 have been duly maintained in Exhibit-D in writing and signature of DW-5 and according to the said Exhibit-D there is income of Rs.40,59,441/- between 1995 to 2007 and the said income is to be divided between five brothers and after the division of the said income, the income of one brother comes to Rs.8,11,882/- only. The learned counsel has further submitted that it is the duty of the prosecution to prove the valid prosecution sanction order issued from the competent authority during the course of trial but in the instant case the prosecution has failed to prove the so-called prosecution sanction order related to the appellant issued from the competent authority during the course of trial. The learned counsel has further submitted that the sanction order has been exhibited by the learned trial Court as Exhibit- 49 on the date of judgment i.e. 07.06.2023 in a mechanical and arbitrary manner without proving the said document. The learned counsel has further submitted that during the course of trial, the appellant was in custody for one month and eleven days and thereafter, the appellant is in custody from the date of conviction i.e. 07.06.2023. The learned counsel has lastly submitted that the appellant is a senior citizen suffering from old age ailments.

4. Learned counsel for the UoI has opposed this interlocutory application for suspension of sentence, during the pendency of this criminal appeal and has submitted that the learned trial Court has examined all the evidences adduced by the prosecution as well as the defence and on the basis of the evidence collected during the course of trial, it has been categorically found that the appellant has got disproportionate assets to the extent of Rs.20,05,583.43 which is 46.48% of his income. The learned counsel has further submitted that the learned trial Court has discussed the evidence of the prosecution witnesses and the defence witnesses in detail and after considering the entire evidence either oral or documentary adduced by the parties, the income during the check period, the expenditure value of the assets and disproportionate assets have been determined which has been found to the extent of Rs.20,05,583.43. The learned counsel has further submitted that the learned trial Court has taken into consideration the house building loan and all the heads relating to the total interest received from SBI, Doghar, income of the wife of the appellant Meera Devi, then the maturity value and money back benefit of various LIC policies. The house rent received by the appellant during the check period and, thereupon, Table-A has been prepared which is appearing at page-112 of the memo of appeal which relates to the income of the appellant from known sources received from the check period i.e. 01.01.1995 to June, 2007 and the said amount has been found to be Rs. 40,93,097.47 and the amount which has been proved either by the prosecution or the defence has also been taken note of in the said table. The learned counsel has further submitted that the learned trial Court has prepared Table-B appearing at Page- 115 of the memo of appeal which relates to the other income of the appellant and his wife before check period and the said amount has been found to be Rs.2,22,000/-. Thereafter, the learned counsel has submitted that the learned trial Court has prepared Table-C which is appearing at Page-123 of the memo of appeal which relates to the expenditure during the check period i.e. from 01.01.1995 to June, 2007 and an amount of Rs.15,86,850.90 was found to be admitted by the Court towards the expenditure of the appellant. The learned counsel has further submitted that the learned trial Court has prepared after going through the entire evidence Table-D, which is appearing at Page-132 of the memo of appeal which relates to immovable and movable assets acquired during the check period and the value of the same has been arrived at Rs.47,33,830/- and, consequently, the calculation of the disproportionate assets have been calculated at Page-134 of the memo of appeal, wherein specific finding has been given by the learned Court below that the appellant has acquired disproportionate asset amounting to Rs.20,05,583.43 which is 46.48% of the DA, and as such, the conviction has been made. The learned counsel has further submitted that the appellant has challenged that the investigation of the present case has been done by the Officer below the rank of DSP and there is no authorization of the Superintendent of Police. In this regard, it is submitted that the FIR itself shows that there is specific authorization by the Superintendent of Police for investigation of the case by the DSP and as such, the contention on the part of the appellant is not tenable in the eyes of law. The learned counsel has further submitted that there was no sanction order proved with regard to prosecution of the appellant and only the sanction order has been exhibited. In this regard, it is submitted that once the sanction order has been brought on record and during course of the trial nothing has been shown by the appellant to show that any prejudice has been caused to him nor at the time of argument it could be shown that there was any prejudice which has been caused to him, and as such, the said point can be determined during the course of final hearing and it cannot be the subject matter for determination of suspension of sentence at this stage. In the light of the aforesaid submissions, it is prayed that the application for suspension of sentence of the appellant may be rejected.

5. Having heard submissions made by both counsels, noted their submissions, records available, grounds of the appellant as submitted, custodial period, hence in the facts and circumstances, I am inclined to suspend the sentence of the appellant, during pendency of this criminal appeal, and accordingly, present appellant, named above, is ordered to be released on bail, during pendency of this criminal appeal, on executing bail bonds of Rs. 50,000/- (Rupees Fifty Thousand only) with two sureties of the like amount each to the satisfaction of the learned Special Judge, CBI, Dhanbad in connection with RC Case No. 05(A)/2007-AHD-R.

6. Accordingly, IA No. 5571 of 2023 stands disposed of.

S.B.                                                    (Ratnaker Bhengra, J.)