Madras High Court
Petitioner In All Crl.Rcs vs Durai Murugan on 23 April, 2025
Author: P.Velmurugan
Bench: P.Velmurugan
Crl.RC.Nos.265 to 269 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 06.01.2025
PRONOUNCED ON : 23.04.2025
Coram:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Crl.RC.Nos.265 to 269 of 2013
State represented by
The Superintendent of Police
Vigilance & Anti Corruption
(City Special Unit-I), Chennai
(V & A.C. Chennai Crime No.9 of 2002)
... Petitioner in all Crl.RCs.
Vs.
Durai Murugan ... Respondent in Crl.RC.No265 of 2013
D.Santhakumari ... Respondent in Crl.RC.No.266 of 2013
Kadir Anand ... Respondent in Crl.RC.No.267 of 2013
K.Sangeetha ... Respondent in Crl.RC.No.268 of 2013
Durai Singaram ... Respondent in Crl.RC.No.269 of 2013
Prayer in Crl.RC.No.265 of 2013: Criminal Revision Case filed under under
Section 397 & 401 of Cr.P.C. to set aside the order of discharge passed by the
Special Judge cum Chief Judicial Magistrate Court, Vellore in
1/55
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Crl.M.P.No.1674 of 2006 (Common order passed in Cr.M.P.Nos.1674/2006 to
1678/2006) in Special Case No.1 of 2004 dated 23.02.2007.
Prayer in Crl.RC.No.266 of 2013: Criminal Revision Case filed under under
Section 397 & 401 of Cr.P.C. to set aside the order of discharge passed by the
Special Judge cum Chief Judicial Magistrate Court, Vellore in
Crl.M.P.No.1675 of 2006 (Common order passed in Cr.M.P.Nos.1674/2006 to
1678/2006) in Special Case No.1 of 2004 dated 23.02.2007.
Prayer in Crl.RC.No.267 of 2013: Criminal Revision Case filed under under
Section 397 & 401 of Cr.P.C. to set aside the order of discharge passed by the
Special Judge cum Chief Judicial Magistrate Court, Vellore in
Crl.M.P.No.1676 of 2006 (Common order passed in Cr.M.P.Nos.1674/2006 to
1678/2006) in Special Case No.1 of 2004 dated 23.02.2007.
Prayer in Crl.RC.No.268 of 2013: Criminal Revision Case filed under under
Section 397 & 401 of Cr.P.C. to set aside the order of discharge passed by the
Special Judge cum Chief Judicial Magistrate Court, Vellore in
Crl.M.P.No.1677 of 2006 (Common order passed in Cr.M.P.Nos.1674/2006 to
1678/2006) in Special Case No.1 of 2004 dated 23.02.2007.
2/55
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Crl.RC.Nos.265 to 269 of 2013
Prayer in Crl.RC.No.269 of 2013: Criminal Revision Case filed under under
Section 397 & 401 of Cr.P.C. to set aside the order of discharge passed by the
Special Judge cum Chief Judicial Magistrate Court, Vellore in
Crl.M.P.No.1678 of 2006 (Common order passed in Cr.M.P.Nos.1674/2006 to
1678/2006) in Special Case No.1 of 2004 dated 23.02.2007.
For Petitioner in all cases : Mr.J.Ravindran
Additional Advocate General
assisted by Mr.S.Vinoth Kumar
Government Advocate (Crl. Side)
For Respondent in
Crl.RC.No.265/2013 : Mr.Sidharth Luthra
Senior Advocate
Assisted by Mr.Richardson Wilson
For Respondents in
Crl.RC.Nos.266/2013 to 269/2013 :Mr.P.Wilson
Senior Advocate
Assisted by Mr.Richardson Wilson
******
COMMON ORDER
These Criminal Revision Cases have been filed by the State to set aside
the order of discharge passed by the Special Judge cum Chief Judicial
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Magistrate Court, Vellore in Cr.M.P.Nos.1674/2006 to 1678/2006 in Special
Case No.1 of 2004, dated 23.02.2007.
Gist of the prosecution case:
2 Petitioner in Crl.RC.No.265 of 2013 namely D.Durai Murugan/A1
was the Minister of Public Works and Forest Department, Government of
Tamil Nadu during the period between 13.05.1996 and 14.05.2001. He is a
member of the Tamil Nadu Legislative Assembly elected from Katpadi
Constituency from 15.05.2001 and he is a 'public servant' within the meaning
of Section 2(C) of the Prevention of Corruption Act, 1988 (herein after
referred to as "P.C. Act") from 13.05.1996.
2.1 Petitioner in Crl.RC.No.266 of 2013 namely D.Santhakumari/A2
is the wife of the Public Servant. Petitioner in Crl.RC.No.267 of 2013 namelyl
Kadir Anand/A3 is the son of the Public Servant. Petitioner in Crl.RC.No.268
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of 2013 namely K.Sangeetha/A4 is the wife of A3. Petitioner in Crl.RC.No.269
of 2013 namely Durai Sinigaram/A5 is the brother of the Public Servant and he
is a retired employee of a private company.
2.2 On the basis of information that A1/D.Durai Murugan during his
tenure as a Minister for Public Works and Forest Department and as a Member
of the Tamil Nadu Legislative Assembly, during the period between 1996-2001
had acquired and was in possession of pecuniary resources and properties in
his name and in the names of his wife, son, daughter-in-law, brother and five
others on his behalf as benamies, which were found disproportionate to his
known sources of income, a case in Crime No.9 of 2002 was registered at
Vellore Vigilance and Anti-Corruption Detachment on 11.10.2002 against
D.Durai Murugan and his wife, son, daughter-in-law, brother and one
B.G.Raghupaty, A.P. Nandhakumar, S.Narayanan, V.Radhagovindan and
R.G.Dharmaraj for the offence under Sections 109, 471, 477-A read with 34 &
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201 IPC read with 13(2) read with 13(1)(d) and 13(1) (e) of P.C. Act and duly
investigated.
2.3 A1-D.Durai Murugan is a native of Kankuppam Village, Katpadi
Taluk in Vellore District. He belongs to a middle class agriculturist family. His
father Duraisamy Gounder was an agriculturist owning 3.99 acres of land at
Kankuppam Village and 1.97 acres of land at Murugampattu Village besides as
ancestral house measuring 800 sq.ft. His parents are no more now. A1 has two
brothers and one sister. Durai Mahalingam is his eldest brother staying at his
native place looking after agriculture. Durai Singaram/A5 is the younger
brother of A1 and retired employee from a private Cement Company at
Chennai. A1, after completing his education with Bachelor degree in law,
joined D.M.K. Party and was elected to Tamil Nadu Legislative Assembly
from Katpadi Assembly Constituency and held the post of M.L.A. During
1971-76, 1977-80 and 1980-84 and is presently a Member of Tamil Nadu
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Legislative Assembly. He held the post of Minister for Public Works and Forest
Department during 1989-91 and 1996-2001. He married A2, daughter of
V.K.Elumalai, who was also an agriculturist and belonged to Kothakottai
Village in Vaniyambadi Taluk. A1 and A2 have one son born on 19.01.1975.
A2/wife of A1 is a housewife and has never been in any employment. A3/son
of A1 completed his education by getting M.B.A. Degree from Baldwin
University at Ohio in United States of America during the year 1997-98. A3
married A4 on 25.05.2000. A4 is a housewife and has never been in any
employment.
2.4 During the year 1993, A1 started a business under the name and
style of M/s.Rajama Exports at Kotturpuram, Chennai, and later shifted to
Keelakottaiyur Village in Chengalpet Taluk in a newly constructed factory
premises in the year 2001, dealing in export of spices and A2/wife of A1 was
shown as Sole Proprietrix of M/s.Rajama Exports and thereby held properties
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and pecuniary resources in the name of M/s.Rajama Exports. A1/D.Durai
Murugan is found to be the real proprietor of M/s.Rajamma Exports.
2.5 In the year 1998, A-1 D.Durai Murugan, started a business in the
name and style of M/s.Kadhir Info-Tech Pvt. Ltd., and Kadhir Agencies at
No.6, 1st Main Road, Gandhi Nagar, Adayar, Chennai-20 in the premises
belonging to A-1, dealing in Computer Software and Chemicals respectively
with A-3 D.S.Kadhir Anand as it's proprietor. A-3 D.S. Kadhir Anand is found
to have been merely purporting to be the sole proprietor of M/s.Kadhir Infor-
Tech. Pvt. Ltd., and Kadhir Agencies and thereby he has been intentionally
aiding A-1 D.Durai Murugan in acquiring and holding properties and
pecuniary resources in the names of M/s Kadhir Info-Tech Pvt.Ltd. And Kadhir
Agencies.
2.6 Similarly, in the year 1999, A-1 D.Durai Murugan has started
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another business in the name and style of Cybase Browsing Centre at No.1/1C,
Baba Toweres, Sterling Road, Nungambakkam, Chennai and L.V. Press at
No.111, Long Bazaar Road, Vellore, with A-3 D.S.Kadhir Anand as it's sole
proprietor. A-3 D.S. Kadhir Anand is found to have been merely purporting to
be the sole proprietor of M/s.Cybase Browsing Centre and L.V. Press, thereby
has been intentionally aiding A-1 D. Durai Murugan in acquiring and holding
properties and pecuniary resources in the names of M/s.Cybase Browsing
Centre and L.V. Press (Lakshmi Vilasam Press].
2.7 In the year 2001, A-1 D. Durai Murugan started a business under
the name and style of Tidel water Supply at Kandipedu Village, Katpadi Taluk,
Vellore District dealing with the manufacture of mineral water with A-4
K.Sangeetha as it's sole proprietrix and thereby she has been intentionally
aiding A-1 D.Durai Murugan in the acquisition of assets.
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2.8 M/s.Rajamma Exports, Kadhir Info-Tech Pvt. Ltd., Kadhir
Agencies, L.V.Press, M/s.Cybase Browsing Centre and Tidel Water Supply are
found to be merely devices invested by A-1 D.Durai Murugan for investigating
and laundering his ill-gotton money and adopted by his for the said illegal
exercise with the active assistance of A-2 to A-5 as afore stated. The properties
and pecuniary resources acquired in the name of M/s. Rajamma Exports, Kadhi
Info-Tech. Pvt. Ltd., Kadhir Agencies, L.V. Press, Cybase Browsing Centre
and Tidel Water Supply are found to have been acquired by A-1 D.Durai
Murugan and are found to be in his possession.
2.9 The period between 13.5.1996 and 18.10.2002 was taken as the
cheek period for investigation as it was the period when substantial portion of
properties and pecuniary resources are found to have been acquired by A-1
D.Durai Murugan in his name and in the name of his family members.
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2.10 As on 13.5.1996, A-1 D.Durai Murugan is found to have been in
possession of pecuniary resources and properties in his name and in the name
of his wife D.Shantha Kumari (A-2), his son D.S.Kadhir Anand [A-3] and his
brother Durai Singaram (A-5) of a total value of Rs.38,28,928/-.
2.11 As on 18.10.2002, A-1 D.Durrai Murugan is found to have
acquired and was in possession of pecuniary resources and properties in his
name and in the name of his wife D.Shantha Kumari [A-2], in the name of his
son D.S.Kadhir Anand [A-3], in the name of his daughter-in-law K.Sangeetha
[A-4], in the name of his younger brother D.Durai Singaram [A-5] and in the
names of M/s Rajamma Exports, Kadhir Info-Tech Pvt. Ltd., Kadhir Agencies,
L.V. Press, M/s. Cybase Browsing Centre and Tidel Water Supply of a total
value of Rs.5,11,60,123/-.
2.12 Hence, during the check period, A-1 D.Durai Murugan is found
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to have acquired pecuniary resources and properties in his name and in the
name his family members and in the names aforesaid firms viz., M/s.Rajamma
Exports, Kadhir Info-Tech Pvt. Ltd., Kadhir Agencies, M/s Cybase Browsing
Centre, L.V. Press, and Tidel Water Supply of a total value of Rs.4,73,31,195/-.
2.13 During investigation, D.Durai Murugan, D.Shanthakumari,
D.S.Kadhir Anand, K. Sangeetha and D.Durai Singaram had come up with
similar claims of having received huge income through agriculture and the
business run under the name and style of M/s.Rajamma Exports, Kadhir Infor-
Tech Pvt. Ltd., Kadhir Agencies, M/s. Cybase Browsing Centre, L.V. Press and
Tidel Water Supply. These claims were verified and were accepted to the extent
to which they were found true.
2.14 During the check period, A-1 D.Durai Murugan is found to have
had a total income of Rs.3,05,13,153/- from his known sources of income. The
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total expenditure incurred by A-1 D.Durai Murugan during the check period
has been assessed as Rs.2,26,49,268/-. Hence, the likely savings of A-1
D.Durai Murugan at the end of the check period i.e. as on 18.10.2002, are
Rs.78,63,885/- [i.e. Rs.3,05,13,153 (Statement-III) - Rs.2,26,49,268/-
(Statement-IV) + Rs.78,63,885/-).
2.15 Thus, A-1 D.Durai Murugan is found to have had in his
possession of pecuniary resources and properties disproportionate to his known
sources of income to the extent of Rs.3,94,67,310/- [i.e. Rs.4,73,31,195/-
(Statement-V)- Rs.78,63,885/- (Statement-VI) = Rs.3,94,67,310/-)vide
Statement- VII.
2.16 According to prosecution there is impregnable evidence to prove
the commission of the offence by 1st respondent/A1 punishable under Sections
13(2) r/w 13(1)(e) of the Prevention of Corruption Act, 1988, and the
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commission of the offence by the respondents/A2 to A5 punishable under
Sections 109 IPC r/w 13(2) r/w 13(1)(e) of the P.C. Act.
2.17 The Special Court took the case on file in Special Case No.1 of
2004 on 23.02.2007. Pending case, the respondents/A1 to A5 filed petitions in
C.M.P.Nos.1674 of 2006 to 1678 of 2006 under Section 239 Cr.P.C. before the
Special Judge cum Chief Judicial Magistrate Court, Vellore, for their discharge.
On hearing both sides, the trial Court passed order on 23.02.2007 allowing the
petitions filed by the respondents/A1 to A5 and discharged them from the said
case. Hence, challenging the same, the present revision petitions have been
filed by the State.
3 The contention of the learned Additional Advocate General
appearing for the petitioner/State is that the order of the trial Court in
discharging the respondents/A1 to A5 is against the law and weight of evidence
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submitted by the prosecution under Section 173 Cr.P.C. The Special Court has
failed to consider the statements recorded under Section 161 (3) Cr.P.C and
also the documents collected during investigation in a proper perspective. The
learned Special Judge has failed to consider that the accused A-2 to A-5 have
no sufficient sources of income to acquire the properties in their names during
the check period and failed to understand that there is no illegality in
calculating the assets acquired by the other accused during the check period
when they were found to be no adequate sources of income to purchase the
properties. The Special Court failed to consider that though the accused A-2 to
A-5 were income tax assessees, but their incomes were not sufficient to acquire
the properties in their names during the check period and erred in holding that
some of the documents said to have been seized by the Inspector of Police were
not authorized by the Superintendent of Police under Section 17 of the
Prevention of Corruption Act, 1988. The Special Court has erred in discharging
the respondents/A1 to A5 by wrongly weighing the reliability and sustainability
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of the evidence produced in the form of documents by the prosecution and also
erred in holding that the Investigating Officer did not consider the income tax
returns filed by the respondents/A2 to A5, even for the period prior to the
registration of FIR and prior to the check period.
3.1 Further, the Special Court has erred in holding that the
Investigating Officer ought to have issued notice and obtained explanation
from the respondents/A2 to A5, prior to the registration of F.I.R and that the
F.I.R. was registered against the respondents/A1 to A4 hurriedly after an efflux
of time and the final report under Section 173 Cr.P.C. was also hastily filed.
The Special Court has erred in holding that the Investigating Officer has not
alluded any direct or indirect evidence to connect the properties held in the
names of the respondents/A2 to A5, to the first respondent/A1 and the
prosecution has not explained the delay in registering the F.I.R. six years after
the end of the check period. The Special Court has erred in holding that it is
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plausible to accept that the case was filed against the respondents/Al to A5 due
to political vendetta and that the Investigating Officer has not mentioned and
considered the income received by the respondents/A1 to A5 prior to the check
period and that the properties of the Trust had no nexus with the
respondents/A1 to A5.
3.2 The Special Court has misapplied to the instant case, the ratio laid
down by the Honourable Supreme Court in "Krishnananth Agnihothri Vs. State
of Madhyapradesh" (AIR 1977 SCC 796) wherein, it has been held that the
disproportionate assets below 10% would not make out a case, but in the
present case, disproportionate asset has been quantified as 82.64% in the
instant case.
3.3 The Special Court failed to consider the decision of the
Honourable Supreme Court in "K.Rajendra Babu Vs. State of Tamil Nadu"
(2008-1-MLJ-Crl.) wherein it has been laid down that no complaint need be
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given by the aggrieved person to set the criminal law in motion and on coming
to know of the commission of cognizable offences, a police officer has every
authority to set the law in motion by registering the First Information Report.
3.4 The Special Court has erred in holding that the Investigating
Officer has not cited the Superintendent of Police (who issued authorization u/s
17 of the Act to the Investigating Officer) as a witness in the list of witnesses
and that the searches were conducted by other police officers who were not
authorized to do so. The Special Court wrongly came to the conclusion without
any evidence on record that the respondents/A1 to A5 would have earned more
income than that shown in the documents produced by the Investigating Officer
and that the Special Court has not followed the principles laid down by the
Honourable Supreme Court of India in "Superintendent and Remembrance of
legal affairs, West Bengal-Vs-Anilkumar Bhunja" (1979 SCC (Crl) 1038).
3.5 The Special Court failed to consider the following principles laid
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down by the Honourable Supreme Court of India in "State of Maharashtra-
Vs-Somnath Thapa" (AIR 1996 SC Page 1744).
"It is apparent that at the stage of framing the charges,
probative value of the materials on record cannot be gone into and
the material brought on records by the prosecution has to be
accepted as true at that stage".
3.6 The Special Court went wrong in discharging the respondents/A1
to A5 against law and contrary to the following dictum issued by the
Honourable Supreme Court of India in "State of Tamil Nadu-Vs-Narayanan
and another" (2000 SAR (Crl) Page 100 (SC)).
"It appears that the Court went on elaborate examination of
statements recorded during investigation and formed an opinion after
scanning and shaping of the same which was not warranted under
law".
3.7 The Special Court has exceeded its jurisdiction in ordering the
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discharge of the respondents/Al to A4, as if, sitting in the appeal against the
order of conviction. The Special Court went wrong in discharging the
respondents/Al to A5 against the principles laid down by Honourable Supreme
Court of India, New Delhi reported in "State of Madhya Pradesh-Vs-
Mohanalal Soni" (2001 MLJ Crl.60).
"At the stage of framing of charges, the Court has to prima-
facie consider whether there is sufficient ground for proceeding
against the accused. The Court if not required to appreciate the
evidence to conclude whether the materials produced are
sufficient or not to convict the accused. If the Court is satisfied
that prima facie case is made out for proceeding further, then
charges have to be framed".
3.8 The actual assets possessed in the names of respondents/A2 to A5
and the income derived in their names during the check period were fully and
duly taken into consideration by the Investigating Officer while assessing the
proportionality of the assets and that the trial Court failed to consider the
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following principles laid down in "P.Nallammal & Others-Vs-State of Tamil
Nadu" (1999 SAR 804).
"Legislative intent is manifest that abettors of all the
difference offences u/s. 13(1)(e) of the P.C. Act-1988 should also be
dealt along with the public servant in the same trial held by the
Special Judge".
3.9 The Special Court failed to consider that Section 13(1)(e) of the
Prevention of Corruption Act, 1988, ordains in its explanation that "known
sources of income" means income received from any lawful source and such
receipt has been intimated in accordance with the provisions of any law, rules
or orders for the time being applicable to a public servant.
3.10 The Special Court failed to consider the principles laid down by
the Honourable Supreme Court in the case of "State of Madhya Pradesh-Vs-
Awad Kishore Gupta and others" reported in 2004 Cr.L.J 598 that the
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expression "known sources of income" employed in the text of Section 13(1)(e)
of the Prevention of Corruption Act, 1988 has reference to the income known
to the prosecution after thorough investigation.
3.11 The Special Court gravely erred in discharging the respondents/Al
to A5 by not appreciating and considering the connecting links of
circumstantial evidence which would prove that the respondents/A2 to A5 had
been aware of the income, expenditure, etc., of the first respondent/Al and that
they had intentionally aided and thereby abetted A1 in the commission of
offence of the possession of disproportionate assets by the first respondent/A1
by allowing him to acquire assets in their names, by utilizing the money
derived by the first respondent/A1 through un-explainable sources. Based on
the evidence produced by the prosecution, the trial Court ought to have drawn a
reasonable and plausible presumption that the first respondent/Al transferred
the major portion of the assets acquired by him while he was such Minister
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through unknown sources, to the respondents/A2 to A5 who, in turn, acquired
the assets in their names, on behalf of the first respondent/A1, far beyond their
known sources of income. The statements recorded under Section 161 (3)
Cr.P.C and the documents collected during investigation were sufficient to
frame charges against the respondents/A1 to A5. Therefore, the impugned order
is liable to be set aside.
4 The learned Senior Counsel for the respondents/accused
contended that during the check period he had not acquired any property and
the case was registered against him and his wife only due to political motive.
4.1 In the present case the accused hail from a very rich family and
whatever the properties that stand in the name of other accused and also
monies are their individual assets, which were derived from individual source
of income and not from the source of A1.
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4.2 The inclusion of assets standing in the name of other accused,
who are family members of A1 as the assets of A1 is illegal. The assets of other
accused do not belong to A1 and they have independent source of income. The
methodology adopted by the prosecution to establish the possession of
disproportionate assets by the accused with reference to their known source of
income is absolutely erroneous. The clubbing of the properties of other
accused with A1 is absolutely not sustainable. A1 cannot be asked to explain
the source of income of others for the properties standing in their names, over
which, A1 has no claim or control. A1 has nothing to do with the properties
standing in the name of his family members, who are having independent
source of income. The Investigating Officer failed to consider the same and
wrongly clubbed the properties standing in the name of other accused with the
assets of A1. In the absence of any evidence showing that the properties
standing in the name of other accused have been purchased out of the income
of A1, the clubbing of assets held by others with A1 is absolutely erroneous.
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The prosecution failed to consider all these aspects and in order to wreak
vengeance on the political party, false case was foisted and unfortunately
prosecution also carried out the assignment given by the then Ruling Party.
4.3 Further the non designated officer, who is not clothed with the
power of authorization shall not investigate into the matter without prior
sanction by not below the rank of Superintendent of Police and hence in the
present case, the sanction obtained by the prosecution is not valid. Therefore
the learned Magistrate considering the facts and evaluating the materials,
rightly discharged the respondents/accused, which does not call for any
interference by this Court.
4.4 Even though, A1 has offered his reply and had sufficient sources
to account the alleged disproportionate assets, the prosecution has failed to
consider the same and shown exaggerated figures in the statements.
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4.5 Further they would submit that the accused have properly filed
income tax returns and duly accounted for the assets and liabilities. Even
though the Investigating Officer failed to consider the same, the learned
Magistrate rightly appreciated the materials and also found that there is no
prima facie case against the accused and rightly discharged them and there is
no merit in the revisions and the same are liable to be dismissed. To support the
contentions, the learned Senior Counsel placed reliance on many of the
decisions of various High Courts and the Hon'ble Supreme Court and the
decisions of the Hon'ble Supreme Court are as follows:
1. 2002 (2) SCC 135 (Dilawar Balu Kurane Vs. State of Maharashtra)
2. 2006 (7) SCC 172 (State Inspector of Police Vs. Surya Sankaram Karri)
3. 2015 (14) SCC 505 (Kedari Lal Vs. State of M.P)
4. 2020 (3) SCC 240 (Sushil Sethi Vs. State of Arunachal Pradesh)
5. 2011 (12) SCC 658 (Vimaleshwar Nagappa Shet Vs. Noor Ahmed
Shariff)
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6. 2012 (9) SCC 460 (Amit Kapoor Vs. Ramesh Chander)
7. 2019 (20) SCC 539 (State of Gujarat Vs. Afroz Mohammed Hasanfatta)
8. 2023 (8) SCC 410 (Manik Majumder Vs. Dipak Kumar Saha)
9. 2006 (8) SCC 279 (BSNL Vs. Subash Chandra Kanchan)
10.2022 (16) SCC 663 (State Vs. Uttamchand Bhora)
11. 1977 (1) SCC 816 (Krishnanand Agnihotri Vs. State of M.P)
12.2006 (1) SCC 420 (DSP Vs. K.Inbasagaran)
13.1954 (2) SCC 934 (H.N.Rishbud Vs. State (Delhi Admn) )
14.2015 (4) SCC 609 (Sunil Bharti Mittal VS. CBI)
15.2020 (2) SCC 338 (Yashwant Sinha Vs. CBI)
16.2003 (6) SCC 195 (Union of India Vs. Prakash P. Hinduja)
17.2022 (15) SCC 430 (Ravindranath Bajpe Vs. Mangalore Special
Economic Zone Ltd)
5 Heard both sides and perused the materials available on record.
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6 The specific case of the prosecution is that the first respondent
was serving as Minister for Public Works and Forest Department during the
years 1989-91 and 1996-2001. During the period between 1996 and 2001, he
allegedly had acquired properties in his name and also in the names of A2 to
A5. The petitioner/State after investigating the matter laid the charge sheet.
Though sufficient opportunity was given to A1 to offer his explanation, he did
not give any satisfactory explanation. Therefore, the petitioner/State, based on
the documents collected during the investigation and the statements recorded
under Section 161 Cr.P.C., formed an opinion that A1 had acquired assets,
which are disproportionate to his known source of income and A2 to A5
abetted A1 for acquiring the properties. Therefore, there are enough materials
available to frame charges against the accused and to proceed with the case
further.
7 Admittedly, A1 was a Minister during the check period between
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1996 and 2001. The investigation report filed under Section 173 (3) Cr.P.C.
along with the statements recorded under Section 161(3) Cr.P.C. as well as the
documents collected during investigation and the statements shown in the
charge sheet (schedule statement 1 to 7) reveal that there is prima facie
material to substantiate the allegations of disproportionate assets. However,
when the respondents/accused filed discharge petitions, the same were allowed
and the Special Court discharged them.
8 The contention of the learned Senior Counsel is that the
prosecution’s methodology in establishing disproportionate assets is flawed.
The clubbing of properties belonging to other accused with A1’s assets is
unsustainable. A1 cannot be held responsible for properties in the names of
individuals with whom he has no claim or control, especially when these
properties were acquired from their independent income. The Investigating
Officer wrongly linked these assets to A1 without any evidence that they were
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purchased from his income. The Trial Court held that the prosecution, only to
inflate the expenses and to add to the value of the disproportionate income,
clubbed the assets of other accused with A1. At this juncture, it is useful to
refer Section 13(1)(e) of the Prevention of Corruption Act, 1988 including
explanation, which is extracted hereunder:
"Section 13: Criminal misconduct by a public servant:-
(1) ...
(a) ...
(e) 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."
Explanation - For the purpose of this section,
"known sources of income" means income received
from any lawful source and such receipt has been
intimated in accordance with the provisions of any
law, rules or orders for the time being applicable to
a public servant."
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9 In the Explanation to Section 13(1)(e) of the Prevention of
Corruption Act, the term known source of income has been discussed and as
per which, "known source of income" means income received from any lawful
sources and the public servant should intimate such receipt in accordance with
the provisions of any law, rules or orders for the time being. In this context, it is
pertinent to refer to the meaning of the expression "known sources of income,"
as explained by the Hon'ble Apex Court in the case of C.S.D. Swami v. State
[AIR 1960 SC 7], wherein it has been observed as follows:
" Now, the expression 'known sources of income' must have
reference to sources known to the prosecution on a thorough
investigation of the case. It was not, and it could not be, contended
that 'known sources of income' means sources known to the accused.
The prosecution cannot, in the very nature of things, be expected to
know the affairs of an accused person. Those will be matters
'specially within the knowledge' of the accused, within the meaning
of Section 106 of the Evidence Act."
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10 Further, recently, the Hon'ble Supreme Court in the case of State
of Tamil Naud Vs. Soundirarasu reported in 2023 (6) SCC 768, elaborately
discussed about the known source including the explanation to Section 13
(1)(e) of the P.C. Act,1988 and the relevant paragraph of the decision is
extracted herein under:
41. While the expression “known sources of income”
refers to the sources known to the prosecution, the expression
“for which the public servant cannot satisfactorily account”
refers to the onus or burden on the accused to satisfactorily
explain and account for the assets found to be possessed by the
public servant. This burden is on the accused as the said facts
are within his special knowledge. Section 106 of the Evidence
Act applies. The Explanation to Section 13(1)(e) is a procedural
section which seeks to define the expression “known sources of
income” as sources known to the prosecution and not to the
accused. The Explanation applies and relates to the mode and
manner of investigation to be conducted by the prosecution, it
does away with the requirement and necessity of the prosecution
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to have an open, wide and roving investigation and enquire into
the alleged sources of income which the accused may have. It
curtails the need and necessity of the prosecution to go into the
alleged sources of income which a public servant may or
possibly have but are not legal or have not been declared. The
undeclared alleged sources are by their very nature are expected
to be known to the accused only and are within his special
knowledge. (emphasis supplied) The effect of the Explanation is
to clarify and reinforce the existing position and understanding
of the expression “known sources of income” i.e. the expression
refers to sources known to the prosecution and not sources
known to the accused. The second part of the Explanation does
away with the need and requirement for the prosecution to
conduct an open ended or roving enquiry or investigation to find
out all alleged/claimed known sources of income of an accused
who is investigated under the PC Act, 1988. The prosecution can
rely upon the information furnished by the accused to the
authorities under law, rules and orders for the time being
applicable to a public servant. No further investigation is
required by the prosecution to find out the known sources of
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income of the accused public servant. As noticed above, the first
part of the Explanation refers to income received from
legal/lawful sources. This first part of the expression states the
obvious as is clear from the judgment of this Court in N.
Ramakrishnaiah [N. Ramakrishnaiah v. State of A.P., (2008) 17
SCC 83 : (2010) 4 SCC (Cri) 454] .
11 In the present case, it is seen that after the investigation and prior
to the filing of the charge sheet, A1 was called for explanation by the
Investigating Officer and the same was also acknowledged by A1. Though A1
sent a letter seeking further time to offer his explanation and at last, did not
give any satisfactory explanation. Whether the properties in question were
acquired from the first accused or are the independent properties of the other
respondents is also an issue that can be determined only upon full appreciation
of evidence during trial and not at the stage of discharge.
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12 It is settled proposition of law that at the time of framing of
charges, the probative value of the materials on record cannot be gone into and
the materials brought on record by the prosecution has to be accepted as true at
the stage of framing of charges. (State of Maharashtra-Vs-Somnath Thapa"
(AIR 1996 SC Page 1744). The veracity and validity of the documents
collected during investigation also cannot be gone into at the stage of framing
of charges. Further at the time of framing of charges, the Court has to prima
facie consider whether there are sufficient materials to frame charges against
the accused. The Court is not required to appreciate the evidence to conclude
whether the materials produced are sufficient to convict the accused. If the
Court is satisfied that prima facie case is made out to proceed further, then the
charges have to be confirmed. Further, the Court cannot go into elaborate
examination of statements recorded during investigation and form an opinion
after scanning and shaping of the same which is not permissible under law.
Therefore the finding of the trial Court that the accused has accounted the
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disproportionate asset with his known source of income is not sustainable.
13 At the time of framing of charges, the Court has to look into the
final report filed by the Investigating Officer and also the materials produced
by the Investigating Officer and if it reveals that prima facie materials are
available, the Court has to frame charges and proceed the case further against
the accused and equally it is settled proposition of law that at the time of
framing charges, the Court cannot look into the defence of the accused or
documents filed by the accused. But in the present case it is seen that the
Special Judge has traversed beyond the scope of Section 239 Cr.P.C, which
eventually ended in discharging the accused.
14 Once the Court finds that the materials produced by the
Investigating Officer reveal prima facie case, then the Court has to frame
charges and proceed further.
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15 Furthermore, the prosecution has to be given an opportunity to
substantiate its charges levelled against the accused in the final report. The
Court itself cannot interpret in its own way and form an opinion that the
materials are not sufficient to convict the accused.
16 The next contention of the learned Senior Counsel for the
respondents/accused with regard to the income tax returns filed by the
respondents/accused shows that they are maintaining proper accounts. But, it is
settled proposition of law that the income tax returns submitted by the accused
before the income tax authorities are not a conclusive one and the same must
be testified and decided only during trial by examining the competent witness.
Further, mere filing of income tax returns before the income tax authority,
cannot be held that the respondents/accused earned such income from a lawful
source.
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17 One of the grounds taken by the learned Senior Counsel for the
respondents is that the ITR filed by the accused are legal documents and
assessed and accepted by the Income Tax Department and that the prosecution
has neither challenged these returns nor presented any conclusive evidence to
demonstrate the exaggeration and to support this contention, reliance was also
placed on the decision of the Hon'ble Supreme Court in the case of
Krishnanad Agnihotri vs. State of Madhya Pradesh reported in 1977 (1) SCC
816. In this regard it is pertinent to note that subsequently the Hon'ble Supreme
Court has rendered its judgment in the case of State of Tamil Nadu vs.
N.Suresh Rajan and Others reported in (2014) 11 SCC 709 and the relevant
portion is extracted hereunder:
“The property in the name of an income tax assessee itself
cannot be a ground to hold that it actually belongs to such an
assessee. In case this proposition is accepted, in our opinion, it will
lead to disastrous consequences. It will give opportunity to the
corrupt public servants to amass property in the name of known
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persons, pay income tax on their behalf and then be out from the
mischief of law.”
18 Further, the Hon'ble Supreme Court in the case of State of
Karnataka Vs. J.Jayalalitha reported in (2017) 6 SCC 263 has held that:
“190. The decision is to convey that though the IT returns
and the orders passed in the IT proceedings in the instant case
recorded the income of the accused concerned as disclosed in their
returns, in view of the charge levelled against them, such returns
and the orders in the IT proceedings would not by themselves
establish that such income had been from lawful source as
contemplated in the Explanation to Section 13(1)(e) of the PC Act,
1988 and that independent evidence would be required to account
for the same.
191. Though considerable exchanges had been made in
course of the arguments, centring around Section 43 of the
Evidence Act, 1872, we are of the comprehension that those need
not be expatiated in details. Suffice it to state that even assuming
that the income tax returns, the proceedings in connection
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therewith and the decisions rendered therein are relevant and
admissible in evidence as well, nothing as such, turns thereon
definitively as those do not furnish any guarantee or
authentication of the lawfulness of the source(s) of income, the pith
of the charge levelled against the respondents. It is the plea of the
defence that the income tax returns and orders, while proved by
the accused persons had not been objected to by the prosecution
and further it (prosecution) as well had called in evidence the
income tax returns/orders and thus, it cannot object to the
admissibility of the records produced by the defence. To reiterate,
even if such returns and orders are admissible, the probative value
would depend on the nature of the information furnished, the
findings recorded in the orders and having a bearing on the charge
levelled. In any view of the matter, however, such returns and
orders would not ipso facto either conclusively prove or disprove
the charge and can at best be pieces of evidence which have to be
evaluated along with the other materials on record. Noticeably,
none of the respondents has been examined on oath in the case in
hand. Further, the income tax returns relied upon by the defence as
well as the orders passed in the proceedings pertaining thereto
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have been filed/passed after the charge-sheet had been submitted.
Significantly, there is a charge of conspiracy and abetment against
the accused persons. In the overall perspective therefore neither
the income tax returns nor the orders passed in the proceedings
relatable thereto, either definitively attest the lawfulness of the
sources of income of the accused persons or are of any avail to
them to satisfactorily account the disproportionateness of their
pecuniary resources and properties as mandated by Section
13(1)(e) of the Act.
192. A Constitution Bench of this Court in Iqbal Singh
Marwah v. Meenakshi Marwah [Iqbal Singh Marwah v. Meenakshi
Marwah, (2005) 4 SCC 370 : 2005 SCC (Cri) 1101] in this context
had ruled that there is neither any statutory provision nor any
legal principle that the findings recorded in one proceeding may
be treated as final or binding on the other as both the cases have
to be decided on the basis of the evidence adduced therein.
......
196. This Court ruled that the fact that the accused, other
than the two Ministers, had been assessed to income tax and had
paid income tax could not have been relied upon to discharge the
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accused persons in view of the allegation made by the prosecution
that there was no separate income to amass such huge property. It
was underlined that the property in the name of the income tax
assessee itself cannot be a ground to hold that it actually belongs
to such an assessee and that if this proposition was accepted, it
would lead to disastrous consequences. This Court reflected that in
such an eventuality it will give opportunities to the corrupt public
servant to amass property in the name of known person, pay
income tax on their behalf and then be out from the mischief of
law.
The discussions and the categorical pronouncement rendered by the Hon'ble
Supreme Court would show that mere filing of income tax returns by the
accused cannot be a ground to escape from the clutches of law, unless the same
is proved with sufficient materials in the manner known to law, and such
determination can be made only after trial.
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19 As far as the allegation against A2 to A5 that they abetted A1 to
amass wealth is concerned, the learned Senior Counsel for the
respondents/accused contended that there is no abetment on the part of A2 to
A5 and they all have separate independent source of income and that the
learned Special Judge has also made an observation that the prosecution has
not proved that A2 to A5 abetted A1 to acquire assets which are
disproportionate to his known source of income. However, the allegation is that
A1 being a public servant had acquired properties in his name and also in the
names of A2 to A5. A2 to A5 abetted A1 for acquiring the properties which is
disproportionate to known sources. Therefore, A1 to A5 have to be tried
together. In this regard it is useful to refer the decisions of the Hon'ble Supreme
Court in the case of "P.Nallammal & Others-Vs-State of Tamil Nadu" (1999
SAR 804), wherein it is held as follows:
"Legislative intent is manifest that abettors of all the
difference offences u/s. 13(1)(e) of the P.C. Act-1988 should also be
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dealt along with the public servant in the same trial held by the
Special Judge".
20 In view of the above principles, the abettors of all the offence
under the P.C. Act, should be dealt along with the public servant in the same
trial held by the Special Judge. Therefore the reason cited by the learned
Special Judge to discharge A2 to A5 is not sustainable.
21 As far as the contention regarding the validity of sanction is
concerned, mere defect in sanction would not affect the case of the prosecution
and in this regard it is useful to refer the decision of the Hon'ble Supreme Court
reported in (2009) 15 SCC 537 in the case of V.Padmanabham vs.
Government of Andhra Pradesh and Ors and the relevant portion is extracted
hereunder:
“8. So far as the defect in sanction aspect is concerned, the
circular on which the High Court has placed reliance needs to be
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noted. The Circular in question is dated 9-2-1988 the relevant
portion reads as follows:
The Government also decided that before giving approval of
prosecutions, the Principal Secretary, Law and Legal Department
will obtain the advice of department concerned.”
A bare perusal of the paragraph shows that before giving approval
for prosecution, advice of the department concerned was
necessary. The question arises whether the absence of advice
renders the sanction inoperative. Undisputedly the sanction has
been given by the Department of Law and Legislative Affairs. The
State Government had granted approval of the prosecution. As
noted above, the sanction was granted in the name of the Governor
of the State by the Additional Secretary, Department of Law and
Legislative Affairs. The advice at the most is an interdepartmental
matter.
9. Further, the High Court has failed to consider the effect of
Section 19(3) of the Act. The said provision makes it clear that no
finding, sentence or order passed by a Special Judge shall be
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reversed or altered by a court of appeal on the ground of absence
of/or any error, omission or irregularity in sanction required under
sub-section (1) of Section 19 unless in the opinion of the court a
failure of justice has in fact been occasioned thereby.
10. In the instant case there was not even a whisper or
pleading about any failure of justice. The stage when this failure is
to be established is yet to be reached since the case is at the stage
of framing of charge whether or not failure has in fact been
occasioned was to be determined once the trial commenced and
evidence was led. In this connection the decisions of this Court
in State v. T. Venkatesh Murthy [(2004) 7 SCC 763 : 2004 SCC
(Cri) 2140] and in Parkash Singh Badal v. State of Punjab [(2007)
1 SCC 1 : (2007) 1 SCC (Cri) 193] need to be noted. That being so
the High Court's view quashing the proceedings cannot be
sustained and the State's appeal deserves to be allowed which we
direct.
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11. Coming to the appeal filed by the accused one of the
questions is whether the investigating officer was authorised to
conduct the investigation. The investigation was carried on by the
duly authorised officer, namely, the Deputy Superintendent of
Police under Section 17(c) of the Act. The broader issues raised
need not be looked into. The function of investigation was merely
to collect evidence and any irregularity and illegality in the course
of collection of evidence can hardly be considered by itself to affect
the legality of trial by a competent court of the offence so
investigated.”
22 The Hon'ble Supreme Court, in the decision reported in (2004) 7
SCC 763 in the case of State by Police Inspector vs. T.Venkatesh Murthy,
further held as follows:
7. A combined reading of sub-sections (3) and (4) makes
the position clear that notwithstanding anything contained
in the Code no finding, sentence and order passed by a
Special Judge shall be reversed or altered by a court in
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appeal, confirmation or revision on the ground of the
absence of, or any error, omission or irregularity in the
sanction required under sub-section (1), unless in the
opinion of that court a failure of justice has in fact been
occasioned thereby.
8. Clause (b) of sub-section (3) is also relevant. It shows
that no court shall stay the proceedings under the Act on
the ground of any error, omission or irregularity in the
sanction granted by the authority, unless it is satisfied that
such error, omission or irregularity has resulted in a
failure of justice.
9. Sub-section (4) postulates that in determining under
sub-section (3) whether the absence of, or any error,
omission or irregularity in the sanction has occasioned or
resulted in a failure of justice, the court shall have regard
to the fact whether the objection could and should have
been raised at any earlier stage in the proceedings.
10. Explanation appended to the section is also of
significance. It provides, that for the purpose of Section 19,
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error includes competency of the authority to grant
sanction.
23 Yet another decision reported in (2023) 1 SCC 329 in the case of
Vijay Rajmohan vs CBI (Anti Corruption Branch) held as follows:
22. Statutory provisions requiring sanction before
prosecution either under Section 197CrPC or under Section 97
of the PC Act also intend to serve the very same purpose of
protecting a public servant. These protections are not available
to other citizens because of the inherent vulnerabilities of a
public servant and the need to protect them. However, the said
protection is neither a shield against dereliction of duty nor an
absolute immunity against corrupt practices. The limited
immunity or bar is only subject to a sanction by the appointing
authority.
24 The Hon'ble Apex Court, in the recent judgment in the case of
State vs. Easwaran (2025 INSC 397) held that the High Court committed an
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error in quashing the prosecution on the grounds that the sanction to prosecute
was illegal and invalid. The Hon'ble Apex Court has reiterated that the validity
of a sanction is an issue that must be examined during the course of trial. Since
the case is now at the stage of framing charges, the respondents are free to raise
all their defences before the trial Court. A challenge on a mere technical ground
at this stage is untenable. Hence, the contention regarding defect in sanction is
rejected.
25 A careful reading of the charge sheet filed by the petitioner/State,
this Court prima facie finds that there are sufficient materials to prosecute the
accused/respondents and especially in the absence of any satisfactory
explanation, accounting for the disproportionate assets held by the
respondents/accused, the Court cannot jump into the conclusion that the
materials produced by the prosecution are not sufficient to frame charges
against the accused. Therefore, the findings of the Special Court is perverse.
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26 The Hon'ble Supreme Court in the case of State of
Madhyapradesh Vs. Mohanalal Soni reported in 2001 MLJ Crl. 60, held that
at the stage of framing of charge, the Court has to prima facie consider whether
there is sufficient materials available to proceed the case further as against the
accused and the Court is not required to appreciate the evidence to conclude
whether the materials produced by the prosecution are sufficient to convict the
accused. If the Court is satisfied that prima facie case is made out for
proceeding further, then charges have to be framed.
27 In the present case, the Special Court without framing of charges
and giving an opportunity to the prosecution to substantiate their charges,
simply discharged the respondents/accused on the ground of technicality and
also interpreted the facts in its own way, which warrants interference.
28 There is no quarrel with the decisions relied upon by the learned
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Senior Counsel for the respondents/accused, but the facts of those cases are
distinguishable, which are not applicable to the facts of the present case on
hand, rather the decisions relied upon by the prosecution are squarely
applicable to the present case.
29 Therefore, this Court finds that the reasons given by the Special
Court to discharge the respondents/accused are perverse and hence the order of
discharge passed by the Special Court is liable to be set aside.
30 Accordingly, these Criminal Revision Cases are allowed. The
order passed by the Special Judge cum Chief Judicial Magistrate Court, Vellore
in Cr.M.P.Nos.1674/2006 to 1678/2006 in Special Case No.1 of 2004, dated
23.02.2007 is set aside.
31 The Special Court is directed to frame charges and proceed with
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the case further in accordance with law. Further since the cheque period is
between 1996 and 2001 and considering the scope and object of constitution of
Special Court for dealing the cases of MP and MLAs, the Special Court is
directed to dispose of the case within a period of six months from the date of
receipt of a copy of this order by conducting trial on day to day basis.
23.04.2025
Speaking Order : Yes / No
Neutral Citation Case : Yes/No
ksa-2/cgi
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 05:53:42 pm )
Crl.RC.Nos.265 to 269 of 2013
To
1. The Special Judge cum Chief Judicial Magistrate Court, Vellore
2. The Superintendent of Police, Vigilance & Anti Corruption
(City Special Unit-I), Chennai.
3. The Public Prosecutor, High Court of Madras.
Copy to:
1. The Section Officer, ER Section, Madras High Court.
2. The Section Officer, Criminal Section, Madras High Court.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 05:53:42 pm )
Crl.RC.Nos.265 to 269 of 2013
P.VELMURUGAN. J.
Ksa-2
Pre-Delivery Order in
Crl.RC.Nos.265 to 269 of 2013
23.04.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 25/04/2025 05:53:42 pm )
