- (1.) This appeal has been preferred against the judgment and order dated 11.12.2002 passed by the High Court of Sikkim at Gangtok in Criminal Appeal No. 4 of 2002, upholding the judgment and order dated 30.5.2002, passed by the Special Judge, Prevention of Corruption Act, Gangtok in Criminal Case No. 4 of 1997, convicting the Appellant for the offences punishable under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 (hereinafter called as PC Act 1988) and awarding him the sentence of 3 years RI and a fine of Rs. 10,000/-, in default thereof, to undergo a further RI for six months.
(2.) Facts and circumstances giving rise to appeal are as under: (A) The Appellant joined the Special Branch of Police in the State of Sikkim as a Constable in 1972. He was accorded promotion to the rank of Head Constable in 1976, and was subsequently promoted on an ad hoc basis to the post of Inspector in 1987. His services were attached to the Hon'ble Chief Minister of Sikkim in 1987. The Appellant was repatriated to his parent department, i.e. the Reserve Line, in 1994. (B) An FIR dated 5.1.1996 was registered against the Appellant by the DSP, CBI (ACB) under Section 13(2) r/w Section 13(1)(e) of the PC Act 1988, alleging that the Appellant was in possession of disproportionate assets to the tune of Rs. 6,46,805/- and had accumulated the same between 1987 to 1995. (C) The Appellant received the office memorandum dated 5th/31st August, 1996 from the Superintendent of Police, Police Headquarters, Gangtok, directing him to give a consolidated statement of the immovable properties inherited and/or owned or acquired by him in his name or in the name of any member of his family during the period from 1987 to 1995, as per the requirements of statutory provisions in the Sikkim Government Servants Conduct Rules, 1981 (hereinafter called Rules 1981). (D) The Appellant submitted the required information vide document Ext. D-4 on 10.9.1996 giving full details of the properties acquired and possessed by him. The Director General of Police, Sikkim granted sanction on 5.4.1997, under the provisions of Section 19(1)(c) of the PC Act 1988 to prosecute the Appellant under Section 13(2) r/w Section 13(1)(e) of the PC Act 1988. (E) The charge sheet was submitted against the Appellant on 23.4.1997, alleging that he was found in possession of the assets dis-proportionate to his known sources of income, to the tune of Rs. 18,25,098.69, which had been acquired by him, abusing his official post during the period from 1.4.1987 to 10.1.1996. (F) The learned Special Judge vide order dated 18.6.1998 came to the conclusion that there was a prima facie case against the Appellant to try him for the aforesaid charges. (G) Being aggrieved, the Appellant approached the High Court by filing the Revision Petition No. 4 of 1998 challenging the aforesaid order. The High Court disposed of the said petition vide order dated 26.8.1998 holding that it would be the duty of the Investigating Officer to establish its authority at the time of commencement of the trial. (H) During the course of trial, the prosecution examined 26 witnesses and the statement of the Appellant was recorded under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter called Cr.P.C.) on 29.11.2001. Subsequent thereto, in support of his case the Appellant also examined 4 witnesses. The Special Judge held the Appellant guilty of the aforesaid charges vide judgment and order dated 30.5.2002 and awarded the punishment mentioned hereinabove. (I) Being aggrieved, the Appellant approached the High Court by filing Criminal Appeal No. 4 of 2002. During the hearing of the appeal, an argument was advanced before the High Court that a large number of documents, particularly the Exhibits P/16, P/17, P/23, P/33, P/34, P/35(I), P/35(II), P/35(III), P/62 and P/63, though relied by the Special Judge during the trial, had not been proved in evidence. Therefore, the judgment of the Special Court suffered from fundamental procedural errors and stood vitiated. The High Court instead of deciding the appeal taking into account the aforesaid argument, remitted the matter to the Trial Court vide order dated 27th September, 2002, giving an opportunity to the prosecution to prove those documents and it directed the Trial Court to send the file back to the High Court after completing that formality. (J) The Special Judge considered the matter in the light of the directions issued by the High Court and on an application submitted by the Special Public Prosecutor on 7.10.2002, issued summons to 12 witnesses i.e. Shri Kishore Kumar Mukhiya (PW.3), Shri P.S. Rasaily (PW.4), Shri Chandra Prakash Raya (PW.6), Shri B.K Gurung (PW.8), Shri B.K. Mukhiya (PW.9), Shri Kamal Tewari (PW.10), Shri R.K. Gupta (PW.11), Shri K. Somarajan (PW.12), Shri D.P. Deokotta (PW.15), Shri C.K. Das (PW.16), Shri B.K. Trihatri (PW.23) and Shri Pallav Kenowar (PW.24) to appear before it to prove the aforesaid documents, and dates were fixed for that purpose from 25.10.2002 to 30.10.2002. (K) In spite of all this, the prosecution failed to prove the said documents as the original records of the aforesaid documents, which related to the bills of telephone and electricity expenditure aggregating to Rs. 1,04,364/-. Shri R.K. Gupta, Sr. Accounts Officer (PW.11) appeared before the Special Court and admitted that the original S.R.C. could not be produced in the court as the same was not traceable in respect of the telephone bill. Same remained the position in respect of the electricity charges as Shri D.P. Deokota, Executive Engineer, Power Department (PW.15), admitted that the original demand register could not be brought as the same was not traceable. With the aforesaid remarks, the Special Judge referred the matter back to the High Court and the High Court heard the arguments and dismissed the appeal vide impugned judgment and order. Hence, this appeal.
(3.) Shri V.A. Bobde, learned senior counsel appearing for the Appellant, has raised a large number of issues contending inter-alia that the FIR could not have been lodged without the written order/direction of the Superintendent of Police. The FIR had been lodged in flagrant violation of statutory requirements. The question of putting the criminal law into motion could not arise. Executive action has not only been taken irresponsibly, it tantamounts to abuse of power. The courts below not only ought to have disapproved of it but should have refused to act upon it. The police authorities cannot be permitted to take advantage of an abuse of power. Sanction could not have been accorded without considering the contents of Ex.D-4; no preliminary enquiry had been conducted against the Appellant, as required by various judicial pronouncements of this Court. The documents very heavily relied upon by the prosecution had never been proved in spite of remand of the case for that purpose. Remand even for limited purpose to prove the documents was impermissible as it is tantamount to giving an opportunity to the prosecution to fill up any lacunae in its case. The procedural error committed by the prosecution is not curable. Therefore, the entire prosecution proceedings stood vitiated. More so, the evidence adduced by the Appellant in defence regarding the income from his rented premises had been discarded on flimsy grounds e.g. that the tenants had not shown their income and expenditure while filling up the income tax returns, nor had the tenants produced the rent receipts or on the basis that there was some discrepancy between the income derived from the tenants and the amounts shown from other sources while submitting the Ext. D-4. Shri Bobde has further submitted that the Explanation added to Section 13(1)(e) of PC Act 1988 did not exist in the Prevention of Corruption Act, 1947 (hereinafter called Act 1947). It provides that "known sources of income" means income received from any lawful source and such receipts had been submitted by the Appellant in Ext. D-4. No such requirement was there under Section 5(1)(e) of the Act, 1947 and, therefore, the start of check period from 1.4.1987 and computation of income was not based on any income derived from other lawful sources. The addition of the Explanation to Section 13(1)(e) led to a material change in the statutory requirement. The courts below failed to appreciate the submission that the PC Act 1988 was made applicable in the State of Sikkim on 12.9.1988, though in other States it had come into force earlier. The prosecution failed to make any segregation between the periods covered by the two Acts, as regards income, expenditure, savings, and assets with the result that prosecution had not proved any of the said documents from 12.9.1988. Thus, the entire proceedings had been conducted in gross violation of the rights of the Appellant under Article 21 of the Constitution of India. In view of the above, the appeal deserves to be allowed and judgments and orders of the courts below are liable to be set aside.;