Sri Thakur Kender Singh vs The State Of Telangana
2022 Latest Caselaw 2335 Tel

             HON'BLE SRI JUSTICE K. LAKSHMAN

             CRIMINAL PETITION No. 2812 OF 2022

ORDER:

This Criminal Petition is filed U/Sec.482 of Cr.P.C to

quash the impugned order dated 05.10.2021 in Crl.M.P. No. 459

of 2015 in CC. N. 19 of 2013 on the file of the Principal Special

Judge for Trial of SPE and ACB cases at Hyderabad and set

aside the same and discharge the petitioner in CC No. 19 of

2013, on the file of the Principal Special Judge for Trial of SPE

and ACB cases at Hyderabad, for the offences alleged against

him.

2. Heard Sri V. Pattabhi, learned senior counsel

representing Sri T. Srujan Kumar Reddy, learned counsel for

the petitioner and Sri Ch. Vidya Sagar Rao, learned Special

Public Prosecutor for TS ACB.

3. Petitioner herein is the sole accused in CC No. 19 of

2013. The offences alleged against the petitioner herein are

under Sections 13 (1) (e) r/w. Sec. 13 (2) of Prevention of

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Corruption Act, 1988. The allegation against the petitioner

herein is that he is in possession of disproportionate assets to

the tune of Rs.1,36,49,776/- i.e. total assets possessed and the

excess expenditure is calculated as Rs.91,27,309/- +

Rs.45,22,467/-, for which the petitioner/accused officer cannot

account for satisfactorily.

4. During the pendency of the said C.C., the petitioner

herein had filed the petition under Section 239 of Cr.PC vide

Crl.MP No. 459 of 2015 seeking to discharge him in the said

C.C. on the following grounds :

(1) A.C.B. Officials did not consider the legitimate income and expenditure of petitioner. (2) The investigating officer did not consider the family background of the petitioner. (3) The calculation shown in the charge sheet is incorrect and no case is made out against the petitioner to believe that the petitioner is in possession of assets disproportionate to the known sources of income.

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5. The said application was opposed by the ACB on

the following grounds :

(i) While discharging the petition filed under Section 239 of Cr.P.C, the Court did not go into the merits of the case.

(ii) If there is prima facie case against the accused a charge can be framed and the petitioner is not entitled to discharge.

(iii) The investigating officer has got voluminous evidence to prove possession of disproportionate assets of the petitioner/accused officer.

6. The Court below vide order dated 05.10.2021

dismissed the said application on the following grounds:-

(i) The petitioner while disputing the calculations of the investigating officer has claimed that there is no case against him.

(ii) While deciding a petition filed for discharge, the Court need not go into the merits of the case. The Court has to see whether there is any prima facie material to believe that the petitioner has possessed disproportionate assets. The petitioner did not dispute the existence of properties shown in the annexures filed along with the charge sheet. Though

KL,J Crl.P. No.2812 of 2022

the petitioner disputed the quantum of expenditure and income, the same cannot be decided in a discharge petition.

(iii) The petitioner also required some oral evidence apart from production of all the required documents. Simply, because the petitioner claims that his children are in affluent position and his father-in-law purchased so many properties and earned so much of income by sale of properties, the same cannot be considered in discharge petition. It is for the prosecution to prove the calculations arrived at by the investigating officer by production of oral and documentary evidence. The petitioner has got a right to dispute the evidence by way of his cross-examination. Unless such an exercise is complete, the Court cannot come to a conclusion as to whether the petitioner herein is possessing disproportionate assets to the known sources of income.

Contentions of the petitioner

7. Sri V. Pattabhi, learned senior counsel representing

Sri T. Srujan Kumar Reddy, learned counsel for the petitioner,

would submit that the Court below has not considered the

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contentions raised by the petitioner herein and also did not

consider the legitimate income and expenditure of the

petitioner and the family background and assets of the parents,

parents-in-law of the petitioner. The calculations shown in the

charge sheet are incorrect and no case is made out against the

petitioner to believe that he possessed disproportionate assets

to his known sources of income. The Court below erred in

coming to the conclusion that the said facts cannot be

considered in a petition filed under Section 239 of Cr.PC. The

Court below failed to consider that the prosecution has filed

charge sheet with lot of incompleteness. The Court below also

failed to consider that charge sheet does not show or discuss

about the employment particulars of the son and daughter-in-

law of petitioner who undoubtedly have their own income

which are matter of record, and added and shown all their

income as income of the petitioner, which are all part of official

record collected during investigation.

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8. With the said submissions he sought to quash the

order dated 05.10.2021 and discharge the petitioner in CC No.

19 of 2013.

9. Whereas Sri Ch. Vidya Sagar Rao, learned Special

Public Prosecutor for TS ACB placing reliance on the principle

laid down in Asian Resurfacing of Road Agency Private

Limited and Another Vs. Central Bureau of Investigation1 in

Criminal Appeal Nos.1375-76, Girish Kumar Suneja Vs. CBI2 of

Apex Court he would submit that the scope of the petition filed

under Section 239 of Cr.P.C. is very limited and the Court

cannot go into the merits of the case. According to him, the

Court below on consideration of the same only dismissed the

said discharge petition.

10. In view of the above facts, it is relevant to note that

Section 239 Cr.P.C deals with discharge of accused:-

"When accused shall be discharged. If, upon considering the police report and the documents sent

(2018) 16 SCC 299

(2017) 14 SCC 809

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with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing".

11. The Apex Court has considered the scope of Section

239 of Cr.P.C in a judgment reported in State of U.P. Vs. Udai

Narayan and another3 and held that scanning and scrutinizing

evidence and material produced by the prosecution cannot be

considered in a petition filed under Section 239 of Cr.P.C.

12. In another case reported in 1991 Criminal Law

Journal page 114, the Apex Court held that meticulous

examination of statement in case diary is not permissible and

discharge of accused on the said basis is not proper.

13. In Sheroj Singh Ahlawat and Others Vs. State of

U.P. and another4, the Hon'ble Supreme Court held that the

1994 (4) Crimes 287

2013 (11) SCC 476

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accused is entitled to urge his contentions while entertaining

the discharge application only on the material submitted by the

prosecution, but he is not entitled to produce any material at

that stage and the court is not required to consider any such

material.

14. In another case reported in State of Karnataka

Lokayukta Vs. M.R. Hiremath5, the Apex Court held that at the

stage of application for discharge, the Court has to proceed

with an assumption that the material brought on record by

prosecution is true and to evaluate the said materials and

documents with a view to find out whether the facts emerging

there from taken at their face value disclose the existence of all

the ingredients constituting the offence.

15. Whereas in the present case, the investigating

officer has laid charge sheet against the petitioner herein by

specifically mentioning the abstract of assets in Annexure-I,

abstract of income in Annexure-II and abstract of expenditure

2019 SCC 734

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in Annexure-III. As rightly held by Court below, the actual

income and expenditure of the petitioner has to be proved by

way of oral and documentary evidence by the prosecution

during the trial. The same cannot be decided on the basis of

any petition filed under Section 239 of Cr.P.C. It is for the

prosecution to prove the calculations arrived at by the

investigating officer by way of evidence both oral and

documentary. The burden lies on the prosecution to prove the

same. The petitioner will be given an opportunity of cross-

examination to dispute the same. Unless the said exercise is

complete, the Court cannot come to a conclusion that petitioner

is in possession of disproportionate assets to his known source

of income. The defence taken and grounds urged by the

petitioner herein in the discharge petition are triable issues.

The petitioner has to face the trail and prove that he has not

committed any offence. The same cannot be considered in a

petition under Section 239 of Cr.P.C. The said facts were

considered by the Court below in the impugned order. It is a

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reasoned order and well founded. The petitioner herein failed

to make out any case to quash the said order and discharge him

from C.C. No. 19 of 2013. As such, this petition is liable to be

dismissed and accordingly dismissed.

16. However, as stated supra, the Calendar Case is of

the year 2013. The petitioner had filed the above said discharge

petition in the year 2015 and the same was decided on

15.10.2021. The petitioner herein had filed the present

application after lapse of almost five months. In view of the

same, the learned Principal Special Judge for trail of SPE and

ACB Cases, Hyderabad shall dispose of the CC No. 19 of 2013

in accordance with law, as expeditiously as possible.

17. As a sequel, the miscellaneous petitions, if any,

pending in the criminal petition shall stand closed.

_________________ K. LAKSHMAN, J 06th June, 2022 Skj.