Supreme Court of India
ASHOK TSHERING BHUTIAversusSTATE OF SIKKIM
- Citation
- 2011 INSC 162
- Decided
- 25 February 2011
- Disposal
- Appeal(s) allowed
- Bench
- P SATHASIVAM
Holding
The conviction was set aside because the unexplained assets amounted to only Rs.2.71 lakh, which is not sufficient to constitute a disproportionate asset offence, and procedural defects did not cause a miscarriage of justice.
Summary
The appellant, a senior police officer in Sikkim, was charged under the Prevention of Corruption Act, 1988 for possessing assets disproportionate to his known sources of income. He submitted a detailed statement of his assets (Exhibit D‑4) after the FIR, but the prosecution alleged a much larger unexplained amount and relied on unproved electricity and telephone bills. The High Court upheld his conviction, but the Supreme Court examined whether the prosecution had established a disproportionate asset case, whether procedural defects in investigation, sanction, or non‑compliance with service rules affected the trial, and whether additional evidence could be admitted. The Court held that only about Rs.2.71 lakh remained unexplained, a marginal sum that any government employee could save, and that procedural irregularities did not vitiate the trial absent a miscarriage of justice. Consequently, the Supreme Court set aside the conviction and allowed the appeal.
Issues considered
- The prosecution must prove that the public servant's assets are disproportionate to his known sources of income.
- Whether an oral direction to investigate satisfies statutory requirements for a valid investigation.
- Whether defects or irregularities in the sanction under Section 19 of the PC Act vitiate the trial.
- Whether non‑compliance with Sikkim Government Servants Conduct Rules, 1981, affects the evidentiary value of the asset statement.
- Whether additional evidence under Section 391 CrPC may be admitted at the appellate stage to cure procedural errors.
Legislation cited
- Code of Criminal Procedure, 1973s. 391
- Indian Evidence Act, 1872
- Prevention of Corruption Act, 1988s. 13(1)(e), s. 13(2), s. 19(1)(c)
- Sikkim Government Servants Conduct Ruless. 19
Subjects
CorruptionDisproportionate assetsPrevention of Corruption ActSanction under Section 19Investigation irregularitiesAdditional evidenceSection 391 CrPCService rules complianceProcedural error
Judgment
[2011] 3 S.C.R. 242
A ASHOK TSHERING BHUTIA
v.
STATE OF SIKKIM
(Criminal Appeal No. 945 of 2003)
FEBRUARY 25, 2011
B
[P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.]
Prevention of Corruption Act, 1988:
c s. 13(2) and 13(1)(e) - Charge sheet against appellant-
police officer alleging that he was found in possession of
assets, dis-proportionate to his known sources of income, to
the tune of Rs. 18 lakhs, which was acquired by abusing his
official position during the period from 1987-1996 - Appellant
D submitted the required information vide document Ext. D-4
giving full details of the properties acquired and possessed
by him on plain paper after lodging of the FIR - Grant of
sanction by Director General of Police to prosecute the
appellant - Conviction and sentence uls. 13(2) and 13(1)(e)
by Special Judge - Upheld by the High Court - Sustainability
E of - Held: Not sustainable - Prosecution has to establish that
the pecuniary assets acquired by the public servant are
disproportionately larger than his known sources of income
' and then it is for the public servant to account for such excess
- Offence becomes complete on the failure of the public
F servant to account for or explain such excess - On facts,
electricity and telephone bills were not proved and as such
the amount shown therein cannot be taken into account -
Appellant did not fill up the form as prescribed under the 1981
Rules since the form had never been prescribed u/r. 19 - Not
G filling up the form would make the appellant liable for
disciplinary proceedings under service rules - Non-
compliance of the 1981 Rules would not adversely affect the
evidentiary value of Ext.D-4 and the appellant could not be
H 242
ASHOK TSHERING BHUTIA v. STATE OF SIKKIM 243
fastened with criminal liability- High Court erred in not placing A
reliance on the evidence contained in Ext. D-4 - Taking into
consideration the contents of Ext. D-4, the alleged
unexplained income of the appellant is only Rs. 2,71,613.64
which is significantly lower than what had been alleged by the
prosecution - Check period had been very long and it is B
easily possible that a small over-estimation of the
respondent's expenditure would have been multiplied and
could easily explain the said amount - Alleged unexplained
income remains merely a marginal/paltry sum which any
government employee can save every year - Thus, order of c
the courts below set aside - Sikkim Government Servants
Conduct Rules, 1981 - r. 19.
s. 13(2) and 13(1 )(e) - Defect or irregularity in
investigation - Effect of - Held: Has no bearing on the
competence of the court or procedure relating to cognizance D
or trial, unless a miscarriage of justice has been caused
thereby - On facts, there was an oral direction by the
Superintendent of Police to the concerned officer to the
investigate the case - Issue as to whether the oral order could
meet the requirement of law is a technical issue - There is E
nothing on record to show that the investigation had been
conducted unfairly.
s. 19 - Grant of sanction to prosecute - Invalid sanction
- Effect of - Held: Mere error, omission or irregularity in F
sanction is not considered to be fatal unless it has resulted
in a failure of justice or has been occasioned thereby- s. 19
(1) is procedural and does not go to the root of the jurisdiction
- Once the cognizance has been taken by the court under Cr.
P.C., it cannot be said that an invalid police report is the G
foundation ofjurisdiction of the court to take cognizance - On
facts, in absence of anything to show that any defect or
irregularity in obtaining sanction caused a failure ofjustice, it
cannot be said that sanction was granted without taking into
H
244 SUPREME COURT REPORTS (2011) 3 S.C.R.
A account the assets and income shown in the document.
Code of Criminal Procedure, 1973: s. 391 - Additional
evidence at appellate stage - Held: Is permissible in case of
a failure of justice - However, such power must be exercised
by the court sparingly and only in exceptional suitable cases
8
where the court is satisfied that directing additional evidence
would serve the interests of justice - On facts, the electricity
and telephone bills were not proved at the time of trial and in
absence thereof, the documents cannot be relied upon -
Thus, the judgments by the courts below suffered from
C procedural error and the amount shown in the bill cannot be
taken into account.
The appellant joined the State Police as a Constable
in 1972. He was promoted to the rank of Head Constable
D in 1976, and thereafter, to the post of Inspector on ad hoc
basis in 1987. His services were attached to the Hon'ble
Chief Minister of Sikkim in 1987. The appellant was
repatriated to his parent department, in 1994. An FIR was
registered against the appellant under Section 13(2) r/w
E Section 13(1)(e) of the Prevention of Corruption Act, 1988,
alleging that the appellant was in possession of dis-
proportionate assets to the tune of Rs.6,46,805/- and had
accumulated the same between 1987 to 1995. The
appellant submitted the required information vide
F document Ext. D-4 giving full details of the properties
acquired and possessed by him. The Director General of
Police, Sikkim granted sanction to prosecute the
appellant. Charge sheet was submitted against the
appellant alleging that he was found in possession of
G assets dis-proportionate to his known sources of
income, to the tune of Rs.18,25,098.69, which had been
acquired by him, by abusing his official post during the
period from 1.4.1987 to 10.1.1996. The Special Judge
convicted the appellant for the offences punishable under
H
ASHOK TSHERING BHUTIA v. STATE OF SIKKIM 245
Section 13(2) read with Section 13(1)(e) of the 1988 Act A
and awarded sentence of 3 years RI and a fine of
Rs.10,000/-. The High Court upheld the same. Therefore,
the appellant filed the instant appeal.
Allowing the appeal, the Court B
HELD: 1. At the most a sum of Rs. 2,71,613.69
remained unexplained. The appellant entered into in
service in 1972 and there is no break up so far as assets
and expenditure etc. are concerned in the charge sheet C
though the check period covered both the Acts i.e.
Prevention of Corruption Acts, 1947 or 1988. Even if the
said amount is spread over the period from 1987 to 1996,
the alleged unexplained income remains merely a
marginal/paltry sum which any government employee
0
can save every year. The judgments and orders of the
courts below cannot be sustained in the eyes of law and
are set aside. [Paras 32 and 33] [271-E-F]
2.1 A defect or irregularity in investigation, however
serious, has no direct bearing on the competence or E
procedure relating to cognizance or trial. Therefore,
where the cognizance of the case has in fact been taken
and the case has proceeded to termination, the invalidity
of the precedent investigation does not vitiate the result
unless a miscarriage of justice has been caused thereby. F
The defect or irregularity in investigation has no bearing
- on the competence of the court or procedure relating to
cognizance or trial. [Para 8] [259-D-E]
2.2 In the instant case, the Investigating officer has G
mentioned in the FIR itself that he had orally been
directed by the Superintendent of Police to investigate the
case. There is nothing on record to show that the
officer's statement is not factually correct It is evident\hat
H
246 SUPREME COURT REPORTS (2011] 3 S.C.R.
A there was a direction by the Superintendent of Police to
the concerned officer to investigate the case. Thus, in the
facts and circumstances of the case, the issue as to
whether the oral order could meet the requirement of law
remains merely a technical issue. Further, as there is
B nothing on record to show that the investigation had
been conducted unfairly, the issue is not examined
further. [Para 11] [260-G-H; 261-A-B]
H.N. Rishbud and Anr. v. State of Delhi AIR 1955 SC
c 196; Munnafal v. State of U.P. AIR 1964 SC 28; Khandu
Sonu Dhabi and Anr. v. The State of Maharashtra, AIR 1972
SC 958; State of M.P. v. Bhooraji and Ors. AIR 2001 SC
3372; State of M.P. v. Ramesh Chand Sharma (2005) 12
SCC 628; State of M.P. v. Virender Kumar Tripathi (2009) 15
0 SCC533 - relied on.
Kalpnath Rai v. State (Through CBI) AIR 1998 SC 201
- held per incuriam.
State Inspector of Police, Vishakhapatnam v. Surya
E Sankaram Karri (2006) 7 SCC 172 - referred to.
3. In the absence of anything to show that any defect
or irregularity in obtaining sanction caused a failure of
justice, the plea is without substance. A failure of justice
F is relatable to error, omission or irregularity in the
sanction. Therefore, a mere error, omission or irregularity
in sanction is not considered to be fatal unless it has
resulted in a failure of justice or has been occasioned
thereby. Section 19 (1) of the PC Act 1988 is a matter of
G procedure and does not go to the root of the jurisdiction.
Once the cognizance has been taken by the Court under
Cr. P.C., it cannot be said that an invalid police report is
the foundation of jurisdiction of the court to take
cognizance. [Para 12] [261-0-E]
H
ASHOK TSHERING BHUTIA v. STATE OF SIKKIM 247
Kalpnath Rai v. State (Through CBI) AIR 1998 SC 201; A
State of Orissa v. Mrutunjaya Panda AIR 1998 SC 715; State
by Police Inspector V; Sri. T. Venkatesh Murthy (2004) 7 SCC
763; Shankerbhai Laljibhai Rot v.. State of Gujarat (2004) 13
SCC 487; Parkash Singh Badal and Anr. v. State of Punjab
and Ors. AIR 2007 SC 1274; M.C. Mehta v. Union of India B
and Ors. (Taj Corridor Scam) AIR 2007 SC 1087 - relied on.
State of Haryana and Ors. v. Ch. Bhajan Lal and Ors. AIR
1992 SC 604; State of Maharashtra v. Krishnarao Dudhappa
, Shinde (2009) 4 SCC 219; State of Maharashtra v. Kaliar Koil c·
Subramaniam Ramaswamy AIR 1977 SC 2091; Sajjan
Singh v. State of Punjab AIR 1964 SC 464 - referred to.
4. In view of the facts and circumstances, the instant •
case requires an examination on merits. [Para 14] [262-
E] 0
5.1 Additional evidence at appellate stage is
permissible, in case of a failure of justice. However, such .
power must be exercised sparingly and only in
exceptional cases where the court is satisfied that., E
. directing additional evidence would serve the interests of .
justice. It would depend upon the facts and
circumstances of an individual case as to whether such
permission should be granted having due regard to the
concepts of fair play, justice, and the well-being of F
society. Such an application for taking additional
evidence must be decided objectively, to cure the
irregularity. The primary object of the provisions of
Section 391 Cr.P.C. is the prevention of a guilty man's
escape through some careless or ignorant action on part G
of the prosecution before the court or for vindication of
an innocent person wrongfully accused, where the court
omitted to record the circumstances essential to
elucidation of truth. Generally, it should be invoked when
formal proof for the prosecution is necessary. Thus, the H
248 SUPREME COURT REPORTS [2011] 3 S.C.R.
A additional evidence can be taken at the appellate stage
in exceptional circumstances, to remove an irregularity,
where the circumstances so warrant in public interest.
Generally, such power is exercised to have formal proof
of the documents etc. just to meet the ends of justice.
B However, the provisions of Section 391 Cr. P.C. cannot
be pressed into service in order to fill up lacunae in the
prosecution's case. [Paras 15 and 18] [262-F-H; 263-A;
264-F]
c 5.2 In the instant case, the electricity and telephone
bills have not been proved at the time of trial. The High
Court while hearing the appeal remitted the matter back
to the trial court to allow the prosecution to prove the
said documents and in spite of giving full opportunity to
0 the prosecution witnesses, the said bills were not proved.
Though it may be permissible in law to get the formal
approval of the documents by adducing additional
evidence, it cannot be held even by any stretch of
imagination that in absence of proving the said
E documents the same can be relied upon. Therefore, the
judgment of the courts below suffered from a
fundamental procedural error and the amount shown in
the said bills to the tune of Rs. 1,04,364/- cannot be taken
into account. [Para 20] [248-C-D]
F Rajeswar Prasad Misra v. The State of West Bengal and
Anr. AIR 1965 SC 1887; Rafi/al Bhanji Mithani v. The State
of Maharashtra and Ors AIR 1971 SC 1630; Rambhau and
Anr. v. State of Maharastra AIR 2001 SC 2120; Anil Sharma
and Ors. v. State of Jharkhand AIR 2004 SC 2294; Zahira
G Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors.
(2004) 4 SCC 158; Sidharlha Vashisht@ Manu Sharma v.
State (NCT of Delhi) AIR 2010 SC 2352 - relied on.
State of Gujarat v. Mohan/al Jitamalji Porwal and Anr AIR
H 1987 SC 1321; Santa Singh v. State of Punjab AIR 1956 SC
ASHOK TSHERING BHUTIA v. STATE OF SIKKIM 249
526; Tori Singh and Anr. v. State of Uttar Pradesh AIR 1962 A
SC 399; State of Rajasthan v. Bhawani and Anr. AIR 2003
SC 4230 - referred to.
6.1 No doubt the prosecution has to establish that
the pecuniary assets acquired by the public servant are B
disproportionately larger than his known sources of
income and then it is for the public servant to account
for such excess. The offence becomes complete on the
failure of the public servant to account or explain such
excess. [Para 28] [268-F] c
6.2 Furnishing information about assets and income
etc. on a plain paper was not required as the Government
failed to prescribe the form. The submission regarding
non compliance of the Rules 1981 adversely affecting the
evidentiary value of Ext.D-4 must be rejected because the D
Rules 1981 are not rules of evidence. The admissibility
and probative value of evidence is determined under the
provisions of the Evidence Act, 1872. These rules are
merely service rules by which government servants in E
Sikkim are expected to abide. Consequently, the
respondent has not been able to provide any cogent
reason why the contents of Ext.D-4 should be
disregarded. Rule 19(i)(a) of the Rules 1981 undoubtedly·
requires government servants on first appointment to any F
service or post, and thereafter at the close of every
financial year to submit to the government the return of
their assets and liabilities. However, the said Rule
envisages that public servants would submit such
returns in a prescribed form. Despite being repeatedly G
questioned by this Court, the respondents were unable
to produce such form. Thus, it cannot be said that the
appellant did not comply with the said Rule as in the
absence of such a form it was impossible for him to have
done so. In any event, failing to submit such returns, even H
250 SUPREME COURT REPORTS [2011] 3 S.C.R.
A if there had been no such a form, would make the
appellant liable to face the disciplinary proceedings under
the service rules applicable at the relevant time, but that
itself cannot be a ground for rejection of the said
documents in toto without examining the contents
B thereof. The provisions of the Rules 1981 cannot by any
stretch of imagination be said to have the effect of
rendering evidence inadmissible in criminal proceedings
under the 1988 Act. Thus, in such a fact situation, the
appellant could not be fastened with criminal liability for
C want of compliance of the said requirement of the Rules.
[Paras 22 and 25] [266-8, G-H; 267-A-F]
Bharat Sanchar Nigam Limited and Anr. v. BPL Mobile
Cellular Limited and Ors. (2008) 13 SCC 597 - relied on.
D 6.3 The High Court erred in not placing reliance on
the evidence contained in Ext. D-4. DWs 1-4 did not show
the transactions which would prove that they had taken
the shops from the appellant on rent in their IT returns.
E This reduces their credibility in the eyes of the Court, but
that does not have any impact on the contents of Ext. D-
4 itself. Taking into consideration the contents of Ext. D-
4, it becomes clear that the alleged unexplained income
of the appellant is only Rs. 2,71,613.64. This unexplained
income is significantly lower than what had been alleged
F by the prosecution. It must also be borne in mind that the
check period had been very long and consequently, it is
easily possible that a small over-estimation of the
respondent's expenditure would have been multiplied
and could easily explain the said amount. Thus, if the
G submission that there has been an over-estimation of his
expenses, and that telephone bills and electricity bills
aggregating to Rs. 1,04,364.00 have not been proved
before the trial court is accepted, it would mean that the
H
ASHOK TSHERING BHUTIA v. STATE OF SIKKIM 251
alleged unexplained income is further reduced to Rs. A
1,67,249.64. [Para 27] [268-8-E]
State of Maharashtra v. Pol/onji Darabshaw Daruwal/a
AIR 1988 SC 88; P. Sirajuddin etc. v. The State of Madras
etc. AIR 1971 SC 520; State of Haryana and Ors. v. Ch. B
Bhajan Lal and Ors. AIR 1992 SC 604 - referred to.
Case Law Reference:
AIR 1971 SC 520 Referred to Para 6
AIR 1992 SC 604 Referred to Para 6
c
AIR 1955 SC 196 Relied on Para 8
AIR 1964 SC 28 Relied on Para 8
AIR 1972 SC 958 Relied on Para 8 D
AIR 2001 SC 3372 Relied on Para 8
(2005) 12 sec 628 Relied on Para 8
(2009) 15 SCC533 Relied on Para 8
E
AIR 1998 SC 201 Referred to Para 9, 10, 11
and 12
(2006) 1 sec 112 Referred to Para 10 and 11
AIR 1998 SC 715 Relied on Para 12 F
(2004) 1 sec 763 Relied on Para 12
(2004) 13 sec 487 Relied on Para 12
AIR 2007 SC 1274 Relied on Para 12 G
AIR 2007 SC 1087 Relied on Para 12
AIR 1992 SC 604 Refen;ed.~to
.. ..
' ~' -
Para 13
(2009) 4 sec 219 Referred to Para 13 .. H
252 SUPREME COURT REPORTS [2011] 3 S.C.R.
A AIR 1977 SC 2091 Referred to Para 13
AIR 1964 SC 464 Referred to Para 13
AIR 1965 SC 1887 Relied on Para 15
AIR 1971 SC 1630 Relied on Para 15
B
AIR 2001 SC 2120 Relied on Para 15 and 17
AIR 2004 SC 2294 Relied on Para 15
(2004) 4 sec 158 Relied on Para 15
c
AIR 2010 SC 2352 Relied on Para 15
AIR 1987 SC 1321 Referred to Para 16
AIR 1956 SC 526 Referred to Para 19
D AIR 1962 SC 399 Referred to Para 19
AIR 2003 SC 4230 Referred to Para 19
(2008) 13 sec 597 Referred to Para 22
E AIR 1988 SC 88 Referred to Para 31
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 945 of 2003.
From the Judgment & Order dated 11.12.2002 of the High
F Court of Sikkim in Criminal Appeal No. 4 of 2002.
V.A. Bobde, Arunabh Chowdhury, Raktim Gogoi, G.
Panimei, Manik Kanranjawala for the Appellant.
P.P. Malhotra, ASG, A. Mariarputtam, P.K. Dey, Gaurav
G Sharma, Sonia Malhotra, A.K. Sharma, P. Parmeswaran for the
Respondent.
The Judgment of the Court was delivered by
H
ASHOK TSHERING BHUTIA v. STATE OF SIKKIM 253
DR. B.S. CHAUHAN, J. 1. This appeal has been A
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, B
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 c
months.
2. Facts and circumstances giving rise to appeal are as
under:
I
(A) The appellant joined the Special Branch of Police in D
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 E
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 F
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 G
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
H
254 SUPREME COURT REPORTS (2011) 3 S.C.R.
A requirements of statutory provisions in the Sikkim Government
Servants Conduct Rules, 1981 (hereinafter called Rules 1981 ).
(D) Tile appellant submitted the required information vide
document Ext. D-4 on 10.9.1996 giving full details of the
8 properties acquired and posses·sed by him. The Director
General of Police, Sikkim granted sanction on 5.4: 1997, under
the proviskns 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.
C (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
D 10.1.1996.
(F) Th_e learned Special Judge vide order dated 18.6.1998
came to ttie conclusion that there was a prima facie case
against the appellant to try him for the aforesaid charges.
E (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
F 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
G (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.
H
ASHOK TSHERING BHUTIA v. STATE OF SIKKIM 255
[DR. 8.S. CHAUHAN, J.]
(I) Being aggrieved, the appellant approached the High A
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(1), P/35(11), P/35(111),
P/62 and P/63, though relied by the Special Judge during the B
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, c
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 D
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 8.K Gurung (PW.8), Shri
B.K. Mukhiya (PW.9), Shri Kamal Tewari (PW.10), Shri R.K. E
Gupta (PW.11), Shri K. Somarajan (PW.12), Shri D.P.
Deokotta (PW.15), Shri C.K. Das (PW.16), Shri Shri 8.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. F
(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. G
•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,
H
256 SUPREME COURT REPORTS [2011] 3 S.C.R.
A 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
s 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
C 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
D 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.
E 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.
F 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
G 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. 0-4.
H
ASHOK TSHERING BHUTIA v. STATE OF SIKKIM 257
[DR. S.S. CHAUHAN, J.]
Shri Bobde has further submitted that the Explanation A
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 8
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 c
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 0
regards income, expenditure, savings, 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 E
deserves to be allowed and judgments and orders of the courts
below are liable to be set aside.
4. On the contrary, Shri P.P. Malhotra, Additional Solicitor
General and Shri A. Mariarputham, learned senior counsel
appearing for the respondents, have vehemently opposed the F
appeal pointing out that the document Ext.D-4 was not
submitted in compliance of the statutory requirement of Section
19 of Rules 1981. The fact that documents particularly the
telephone and electricity bills were not proved even after
remand itself does not affect the merits of the case, as the same G
cannot be a ground for disbelieving the said documents. The
said bills had been prepared on the basis of the registers,
though registers could not be traced and the bills could not be
proved.
H
258 SUPREME COURT REPORTS [2011) 3 S.C.R.
A Addition of Explanation to Section 13(1)(e) of the PC Act
1988 does not make any difference whatsoever in view of the
fact that once the prosecution successfully establishes the
possession of dis-proportionate assets the burden shifts to the
accused to prove his innocence. Mere acquisition of property
B does not itself constitute an offence under the P.C. Act, 1988,
rather it is failure to satisfactorily account for such possession
of property that makes the possession thereof objectionable as
offending the law. The issue of segregation of income and
expenditure etc. for the periods covered by the two Acts is not
c required to be considered as PC Act 1947 as well as PC Act
1988 provided for the possession of assets at any time during
the period of his office. Defence evidence has rightly been
discarded by the courts below being not reliable. Any error,
omission or irregularity in the sanction does not vitiate the trial
unless a failure of justice has been occasioned thereby. Thus,
0
the appeal is devoid of any merit and is liable to the dismissed.
5. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
E 6. This Court in P. Sirajuddin etc. v. The State of Madras
etc., AIR 1971 SC 520; and State of Haryana & Ors. v. Ch.
Bhajan Lal & Ors., AIR 1992 SC 604 has categorically held
that before a public servant is charged with an act of dishonesty
which amounts to serious mis-demeanor and an FIR is lodged
F against him, there must be some suitable preliminary enquiry
into the allegations by a responsible officer. Such a course has
not been adopted by the prosecution though the law declared
by this Court is binding on everyone in view of the provisions
of Article 14 of the Constitution, which would by all means
G override the statutory provisions of the Cr.P.C. and such an
irregularity is not curable nor does it fall within the ambit of
Section 465 Cr.P.C. However, as the issue is being raised first
time before this Court, it is not worth further consideration. More
so, the aforesaid observations do not lay down law of universal
H application.
ASHOK TSHERING BHUTIA v. STATE OF SIKKIM 259
[DR. B.S. CHAUHAN, J.]
7. Much has been argued on the issue that investigation A
has been conducted without a proper order in writing, by an
officer not authorised otherwise and sanction has been granted
under Section 19 of the PC Act 1988 vide order dated
5.4.1997, without taking into account the assets and income
shown in Ext. D-4, though the said assets represented known B
sources of income within the meaning of Section 13(1)(e) and
the Explanation attached thereto. It has further been submitted
that an invalid sanction cannot be the foundation for the
prosecution and thus, the entire investigation and trial stood
vitiated as the investigation without proper authorisation and c
invalid sanction goes to the root of the jurisdiction of the court
and so the conviction cannot stand.
8. The issues raised hereinabove are no more res integra.
The matter of investigation by an officer not authorised by law
has been considered by this Court time and again and it has D
consistently been held that a defect or irregularity in
investigation however serious, has no direct bearing on the
competence or procedure relating to cognizance or trial and,
therefore, where the cognizance of the case has in fact been
taken and the case has proceeded to termination, the invalidity E
of the precedent investigation does not vitiate the result, unless
a miscarriage of justice has been caused thereby. The defect
or irregularity in investigation has no bearing on the
competence of the Court or procedure relating to cognizance
or trial. (Vide H.N. Rishbud & Anr. v. State of Delhi, AIR 1955 F
SC 196; Munnalal v. State of U.P., AIR 1964 SC 28, Khandu
Sonu Dhobi & Anr. v. The State of Maharashtra, AIR 1972 SC
958; State of M.P. v. Bhooraji & Ors., AIR 2001 SC 3372; State
of M.P. v. Ramesh Chand Sharma, (2005) 12 SCC 628; and
State of M.P. v. Virender Kumar Tripathi, (2009) 15 SCC 533). GI
9. In Kalpnath Rai v. State (Through CBI), AIR 1998 SC
201, a case under the provisions of Section 20 of Terrorist and
Disruptive Activities (Prevention) Act, 1987, this Court
H
'
260 SUPREME COURT REPORTS [2011) 3 S.C.R.
A considered the issue as to whether an oral direction to an
officer to conduct investigation could meet the requirement of
law. After considering the statutory provisions, the Court came
to the conclusion that as oral approval was obtained from the
competent officer concerned, it was sufficient to legalise the
B further action.
10. In State Inspector of Police, Vishakhapatnam v. Surya
Sankaram Karri, (2006) 7 SCC 172, a two-Judge Bench of this
Court had taken a contrary view without taking note of the earlier
C two-Judge Bench judgment in Kalpnath Rai (supra) and held
as under:
"When a statutory functionary passes an order, that
too authorizing a person to carry out a public function like
investigation into an offence, an order in writing was
D required to be passed. A statutory functionary must act in
a manner laid down in the statute. Issuance of an oral
direction is not contemplated under the Act. Such a
concept is unknown in administrative law. The statutory
functionaries are enjoyed with a duty to pass written
E orders. However, the Court taking note of subsequent
proceedings recorded its conclusions as under:
'It is true that only on the basis of illegal investigation
a proceeding may not be quashed unless miscarriage of
justice is shown, but in this case as we have noticed
F hereinbefore, the respondent had suffered miscarriage of
justice as the investigation made by PW 41 was not fair'."
11. In the instant case, the officer has mentioned in the Fl R
itself that he had orally been directed by the Superintendent of
G Police to investigate the case. It is evident from the above that
the judgments in Kalpnath Rai (supra) and Surya Sankaram
Karri (supra) have been decided by two Judge Benches of this
Court and in the latter judgment, the earlier judgment of this
Court in Kalpnath Rai (supra) has not been taken note of.
H
ASHOK TSHERING BHUTIA v. STATE OF SIKKIM 261
[DR. B.S. CHAUHAN, J.]
Technically speaking it can be held to be per incuriam. There A
is nothing on record to show that the officer's statement is not
factually correct. We have no occasion to decide as which of
the earlier judgments is binding. It is evident that there was a
direction by the Superintendent of Police to the officer
concerned to investigate the case. Thus, in the facts and B
circumstances of the case, the issue as to whether the oral
order could meet the requirement of law remains merely a
tachnical issue. Further, as there is nothing on record to show
that the investigation had been conducted unfairly, we are not
inclined to examine the issue further. c
12. Same remained the position regarding sanction. In the
absence of anything to show that any defect or irregularity
therein caused a failure of justice, the plea is without substance.
A failure of justice is relatable to error, omission or irregularity
in the sanction. Therefore, a mere error, omission or irregularity D
in sanction is not considered to be fatal unless it has resulted
in a failure of justice or has been occasioned thereby. Section
19 (1) of the PC Act 1988 is a matter of procedure and does
not go to the root of the jurisdiction and once the cognizance
has been taken by the Court under Cr.P.C., it cannot be said E
that an invalid police report is the foundation of jurisdiction of
the court to take cognizance. (Vide Kalpnath Rai (supra); State
of Orissa v. Mrutunjaya Panda, AIR 1998 SC 715; State by
Police Inspector v. Sri T. Venkatesh Murthy, (2004) 7 SCC
763; Shankerbhai Laljibhai Rot v. State of Gujarat, (2004) 13 F
SCC 487; Parkash Singh Badal & Anr. v. State of Punjab &
Ors., AIR 2007 SC 1274; and M.C. Mehta v. Union of India &
Ors. (Taj Corridor Scam), AIR 2007 SC 1087).
13. In State of Haryana & Ors. v. Ch. Bhajan Lal & Ors., G
AIR 1992 SC 604, this Court dealing with the same provisions
held that a conjoint reading of the main provision, Section 5-
A(1) (new Section 17) and the two provisos thereto, shows that
the investigation by the designated police officer was the rule
and the investigation by an officer 0f a lower rank was an
H
262 SUPREME COURT REPORTS [2011] 3 S.C.R.
A exception. It has been ruled by the Court in several decisions
that Section 6-A (new Section 23) of the Act was mandatory
and not directory and the investigation conducted in violation
thereof bears the stamp of illegality, but that illegality committed
in the course of an investigation, does not affect the
B competence and the jurisdiction of the Court for trial and where
the cognizance of the case has in fact been taken and the case
has proceeded to termination, the validity of the proceedings
is not vitiated unless a miscarriage of justice has been caused
as a result of the illegality in the investigation.
c In the facts and circumstances of the case, we are also
not willing to examine the correctness of submissions made by
Mr. Bobde in respect of segregation of period covered by two
Acts and as to whether ratio of the judgment of this Court in
State of Maharashtra v. Krishnarao Dudhappa Shinde, (2009)
D 4 sec 219, runs counter to the ratio in State of Maharashtra
v. Kaliar Koi/ Subramaniam Ramaswamy, AIR 1977 SC
2091, wherein the earlier judgment in Sajjan Singh v. State of
Punjab, AIR 1964 SC 464, had been explained.
E 14. In view of the above, the facts and circumstances of
the instant case require an exam ination of the case on merits.
Additional Evidence:
15. Additional evidence at appellate stage is permissible,
F in case of a failure of justice. However, such power must be
exercised sparingly and only in exceptional suitable cases
where the court is satisfied that directing additional ev
dence would serve the interests of justice. It would depend upo
the facts and circumstances of an individual case as to whethe
G such permission should be granted having due regard to t .
e concepts of fair play, justice and the well-being of society I
Such an application for taking additional evidence must be
decided objectively, just to cure the irregularity. The primary
object of the provisions of Section 391 Cr.P.C. is the prevention
H
ASHOK TSHERING BHUTIA v. STATE OF SIKKIM 263
[DR. B.S. CHAUHAN, J.]
of a guilty man's escape through some careless or ignorant A
action on part of the prosecution before the court or for
vindication of an innocent person wrongfully accused, where the
court omitted to record the circumstances essential to
elucidation of truth. Generally, it should be invoked when formal
proof for the prosecution is necessary. (Vide Rajeswar Prasad 8
Misra v. The State of West Bengal & Anr., AIR 1965 SC 1887;
Ratilal Bhanji Mithani v. The State of Maharashtra & Ors., AIR
1971 SC 1630; Rambhau & Anr. v. State of Maharashtra, AIR
2001 SC 2120; Anil Sharma & Ors. v. State of Jharkhand, AIR
2004 SC 2294; Zahira Habibul/a H. Sheikh & Anr. v. State of C
Gujarat & Ors., (2004) 4 SCC 158; and Sidhartha Vashisht
@ Manu Sharma v. State (NCT of Delhi), AIR 2010 SC 2352).
16. This Court in State of Gujarat v. Mohan/al Jitamalji
Porwal & Anr., AIR 1987 SC 1321, dealing with the issue held
as under: D
"... To deny the opportunity to remove the formal defect was
to abort a case against an alleged economic offender.
Ends of justice are not satisfied only when the accused in
· a criminal case is acquitted. The community acting through E~
the State and the Public Prosecutor is also entitled to
justice. The cause of the community deserves equal
treatment at the hands of the court in the discharge of its
judicial functions. The community or the State is not a
persona-non-grata whose cause may be treated with F
disdain. The entire community is aggrieved if the
economic offenders who ruin the economy of the State are
not brought to book. A murder may be committed in the
heat of moment upon passions being aroused. An
economic offence is committed with cool calculation and
deliberate design with an eye on personal profit regardless G
of the consequence to the community. A disregard for the
interest of the community can be manifested only at the
cost of forfeiting the trust and faith of the community in the
system to administer justice in an even-handed manner
H
264 SUPREME COURT REPORTS [2011] 3 S.C.R.
A without fear of criticism from the quarters which view white
collar crimes with a permissive eye unmindful of the
damage done to the national economy and national
interest. .... "
17. In Rambhau (supra), a larger Bench of this Court held
8 as under:
"Incidentally, Section 391 forms an exception to the
general rule that an Appeal must be decided on the
evidence which was before the Trial Court and the powers
C being an exception shall always have to be exercised with
caution and circumspection so as to meet the ends of
justice. Be it noted further that the doctrine of finality of
judicial proceedings does not stand annulled or affected
in any way by reason of exercise of power under Section
o 391 since the same avoids a de novo trial. It is not to fill
up the lacuna but to subserve the ends of justice.
Needless to record that on an analysis of the Civil
Procedure Code, Section 391 is thus akin to Order 41,
Rule 27 of the C.P. Code." (Emphasis added)
E 18. In view of the above, the law on the point can be
summarised to the effect that additional evidence can be taken
at the appellate stage in exceptional circumstances, to remove
an irregularity, where the circumstances so warrant in public
interest. Generally, such power is exercised to have formal
F proof of the documents etc. just to meet the ends of justice.
However, the provisions of Section 391 Cr.P.C. cannot be
pressed into service in order to fill up lacunae in the
prosecution's case.
G 19. In Santa Singh v. State of Punjab, AIR 1956 SC 526;
Tori Singh & Anr. v. State of Uttar Pradesh, AIR 1962 SC 399;
and State of Rajasthan v. Bhawani & Anr., AIR 2003 SC 4230,
this Court placed reliance upon its earlier judgment and came
to the conclusion that any information or statement made before
H
ASHOK TSHERING BHUTIA v. STATE OF SIKKIM 265
[DR. B.S. CHAUHAN, J.]
the investigating officer under Section 161 Cr.P.C. requires A
corroboration by sufficient evidence. In the absence of any
corroboration thereof, it would merely be a case where some
witnesses had stated a particular fact before the investigating
officer and the same remained inadmissible in law, in view of
the provisions of Section 162 Cr.P.C. B
20. In the instant case, the electricity and telephone bills
have not been proved at the time of trial. The High Court while
hearing the appeal remitted the matter back to the Trial Court
to allow the prosecution to prove the said documents and in C
spite of giving full opportunity to the prosecution witnesses, the
said bills were not proved. Though it may be permissible in law
as referred to hereinabove to get the formal approval of the
documents by adducing additional evidence, but it cannot be
held even by any stretch of imagination that in absence of
proving the said documents the same can be relied upon. D
Therefore, the judgments of the courts below suffered. from a .
fundamental procedural error and the amount shown in the said
bills to the tune of Rs.1,04,364/- cannot be taken into account.
21. For the sake of argument, even if it is assumed that E
the form required to be filled up under Rule 19 of the Rules 1981
was mandatory and the appellant failed to fill up the same, for
the reason that the form had never been prescribed under the
Rules 1981, and he ought to have declared the same on plain
papers, as he did on instructions of the superior authority after F
lodging of the FIR against him, the document Ext.0-4 could not
be rejected merely on the ground that it had been submitted
. after the lodging of the FIR. Not filling up the form under the
mandatory requirement of Rule 19 of Rules 1981 may render
the appellant liable for disciplinary proceedings under service G
jurisprudence, but that itself cannot be a ground for rejection of
the said documents in tote without examining the contents
thereof. In this regard, we are of the considered view that the
courts below have committed a grave error and the contents
thereof should have been examined.
H.
266 SUPREME COURT REPORTS [2011] 3 S.C.R.
A 22. In Bharat Sanchar Nigam Limited & Anr. v. BPL
Mobile Cellular Limited & Ors., (2008) 13 SCC 597, this Court
held that "prescribed" means that prescribed in accordance with
law and not otherwise.
Thus, in view of the above, furnishing information about
B
assets and income etc. on a plain paper was not required
as the Government failed to prescribe the said form.
23. It has been urged by the respondents that the contents
of Ext.D-4 were rightly rejected as evidence by the High Court
C for two reasons; (i) Ext.D-4 is not in compliance with the Rules
1981; and (ii) the statements of the defence witnesses
corroborating the contents of Ext.D-4 must be discarded
because they did not account for rent paid in their IT returns or
show any receipts or any documents to support their
D statements.
24. The relevant portion of Rule 19(i)(a) of the Rules 1981
reads as under:
"19(i) a government servant shall, on his first appointment
E to any service or post and thereafter at the close of every
financial year, submit to the government return of his
assets and liabilities in such form as may be prescribed .
by the Government giving full particulars .... ." ~
F (Emphasis added)
25. The contention of the respondents regarding non
compliance of the Rules 1981 adversely affecting the evidentiary
value of Ext.D-4 must be rejected for at least two reasons;
G (I) The Rules 1981 are not rules of evidence. The
.admissibility and probative value of evidence is
determined under the provisions of the Indian
Evidence Act, 1872. These rules are merely service
rules by which government servants in Sikkim are
H
ASHOK TSHERING BHUTIA v. STATE OF SIKKIM 267
[DR. B.S. CHAUHAN, J.]
expected to abide. Consequently, the respondent A
has not been able to provide any cogent reason
why the contents of Ext.D-4 should be disregarded;
and
(ii) Rule 19(i)(a) of the Rules 1981 does undoubtedly B
require government servants to on first appointment
to any service or post and thereafter at the close
of every financial year submit to the government the
return of their assets and liabilities. However, it is
to be noted that the said rule envisages that public
servants will submit such returns in a prescribed C
form. Despite being repeatedly questioned by this
Court, the respondents were unable to produce
such form. Thus, it cannot be said that the appellant
did not comply with the said rule as in the absence
of such a form it was impossible for him to have . D
done so (through no fault of his own). In any event,
failing to submit such returns even if there had been
no such a form, would make the appellant liable to
face the disciplinary proceedings under the service
rules applicable at the relevant time. The provisions E
of the Rules 1981 cannot by any stretch of
imagination be said to have the effect of rendering
evidence inadmissible in criminal proceedings
under the PC Act 1988.
F
Thus, in such a fact situation, the appellant could not be
fastened with criminal liability for want of compliance of the said
requirement of the Rules. ·
26. Learned senior counsel appearing for the respondent
has placed a great deal of emphasis on the argument that G
Mohanlal Goyal, D.W.1, Nagaram Agrawal, D.W.2, Thakur
Bansari, D.W.3 and Dil Hassasan Ansari, D.W.4, did not show
that they had taken the shops from the appellant on rent as they
did not disclose the said fact in their respective income tax
returns nor did they produce sales tax returns or rent receipts. · H
268 SUPREME COURT REPORTS [2011] 3 S.C.R.
A There can be no doubt that the fact that DWs 1-4 did not show
the transactions in their IT returns reduces their credibility in the
eyes of the Court, but that does not have any impact on the
contents of Ext. D-4 itself.
27. Thus, it becomes clear that the High Court erred in not
8 placing reliance on the evidence contained in Ext. D-4. Taking
into consideration the contents of Ext. D-4, it becomes clear
that the alleged unexplained income of the Appellant is only Rs.
2, 71,613.64. This unexplained income is significantly lower than
what had been alleged by the prosecution. It must also be borne
C in mind that check period had been very long and consequently,
it is easily possible that a small over-estimation of the
Respondent's expenditure would have been multiplied and
could easily explain the said amount. Thus, the submission
made on behalf of the appellant that there has been an over-
D estimation of his expenses, further telephone bills and electricity
bills aggregating to Rs.1,04,364.00 have not been proved
before the Trial Court and even after remand by the High Court
when witnesses were recalled, if accepted would mean that the
alleged unexplained income is further reduced to
E Rs.1,67,249.64.
28. No doubt the prosecution has to establish that the
pecuniary assets acquired by the public servant are
disproportionately larger than his known sources of income and
F then it is for the public servant to account for such excess. The
offence becomes complete on the failure of the public servant
to account or explain such excess.
29. The High Court has found that the appellant was in
possession of assets amounting to Rs.18,25,098.69 for which
G he could not account. In coming to this conclusion, the High
Court made the following calculations:
H
ASHOK TSHERING BHUTIA v. STATE OF SIKKIM 269
[DR. B.S. CHAUHAN, J.]
A
Known income of appellant Rs.14,54,629.81
and his wife during the check
period
Expenditure of the appellant Rs.12, 75,928.05 B
and his wife during the check
period
Actual assets in possession of Rs.20,38,715.45
the appellant and his wife at c
the end of the check period
Likely savings of appellant and Rs.14,54,629.81 (-)
his wife at the end of the check Rs.12, 75,928.p5
period =Rs. 1,78,701.76 D
Known assets of the appellant Rs.34,915.00
and his wife at the beginning
of the check pe.-iod
E
Unexplained income of the Rs.20,38,715.45 (-)
appellant and his wife at the Rs.34,915 (-)
end of the check period Rs. 1,78,701.76
= Rs.18,25,098.69
F
30. The High Court has held that the appellant has
amassed assets disproportionate to his known sources of
income. However, throughout the investigation, trial and appeal,
the income contained in Ex.D-4 has been totally ignored in
computing the income from known sources as being. G
Rs.14,54,629.81. B.K. Roka, PW.19, the Superintendent of
Police has admitted that even before sanction was granted on
5.4.1997, the accused had complied with Rule 19 and that
Ex.D-4, subject to mathematical accuracy, for the years 1987-
1994 would aggregate to Rs.15,88,400/- according to the
break-up of each financial year. Similarly, Chand Prakash.Raya,.. H
270 SUPREME COURT REPORTS [2011] 3 S.C.R.
A P.W.6 stated that through Ex.D-4 the accused had complied
with Rule 19. Therefore, this figure should have been added to
income from known sources which would have then amounted
to Rs.30,43,029.81. Even if the expenditure is taken to be
Rs.12,75,928.05, the likely savings amount is Rs.17,67,101.76
B and not Rs.1,78,701. 76. Thus, the gap between the assets
worth Rs.20,38,715.45 and the savings of Rs.17,67,10176
would be Rs.2,71,613.69 instead of Rs.18,25,098.69. Thus, the
table above should have read as follows:
c
Known income of appellant Rs.14,54,R29.81 (+)
and his wife during the check Rs.15,88,400.00
period (+) income explained =Rs.30,43,029.81
and accounted for in Ext. D-4
D Expenditure of the appellant Rs.12, 75,928.05
and his wife during the check
period
Actual assets in possession Rs.20,38, 715.45
E of the appellant and his wife at
the end of the check period
Likely savings of appellant and Rs.14,54,629.81(-)
his wife at the end of the check Rs.12, 75,928.05 (+)
F
period Rs.15,88,400.00
= Rs.17,67,101.76
Known assets of the appellant Rs.34,915.00
and his wife at the beginning
of the check period
G
Unexplained income of the Rs.20,38,715.45 (-)
appellant and his wife at the Rs. 1,78,701.76
end of the check period (·)Rs.15,88,400.00 =
' ' Rs.2, 71,613.69
H
ASHOK TSHERING BHUTIA v. STATE OF SIKKIM 271
[DR. B.S. CHAUHAN, J.]
Thus, it is evident from the above table that only a sum of A ·
Rs. 2.71 lacs (approx.) remains unexplained.
31. In State of Maharashtra v. Pollonji Darabshaw
Daruwal/a, AIR 1988 SC 88, this Court held as under:
" .... on a consideration of the matter it cannot be said that B
there is no disproportion or even a sizeable
disproportion .....There are also other possible errors in the
calculations in regard to point (c). The finding becomes
inescapable that the assets were in excess of the known
sources of income. But on the question whether the extent C
of the disproportion is such as to justify a conviction for
criminal misconduct .... , a somewhat liberal view requires
to be taken of what proportion of assets in excess of the
known sources .of income constitutes "disproportion" for
purposes of Section 5(1)(e) of the Act." (Emphasis added) D
32. In view of the above, at the most a sum of Rs.
2,71,613.69 remained unexplained. The appellant entered into
in service in 1972 and there is no break up so far as assets
and expenditures etc. are concerned in the charge sheet though
the check period covered both the Acts i.e. P.C. Acts, 1947 or E
1988. Even if the said amount is spread over the period from
1987 to 1996; the alleged unexplained income remains merely
a marginal/paltry sum which any government employee can
· save every year.
F
33. In view of the above, we are of the considered opinion
that judgments and orders of the courts below cannot be
sustained in the eyes of law and they are liable to be set aside.
The appeal is allowed. The judgments and orders of the courts
below dated 11.12.2002 passed by the High Court of Sikkim G
at Gangtok in Criminal Appeal No. 4 of 2002 and judgment and
order dated 30.5.2002 passed by the Special Judge,
Prevention of Corruption Act, Gangtok in Criminal Case No. 4
of 1997 are hereby set aside.
N.J. Appeal allowed. H
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