P. NALLAMMALversusSTATE REPRESENTED BY INSPECTOR OF POLICE

                      P. NALLAMMAL                                            A
                             v.
         STATE REPRESENTED BY INSPECTOR OF POLICE

                           AUGUST 9, 1999

                [K.T. THOMAS AND M.B. SHAH, JJ.]                              B

     Criminal Law:

     Prevention of Corruption Act, I 988:

      Section I 3(/)(e)-0.lfence under-Held: Not unabettable-Hence, non-
                                                                              c
public servant can also be tried along with a public servant.

      Section 13(1)(e) Explanation-Wea/th-Possession of-Dispro-
portionate to known sources of income-Held: Known sources of income
should be any lawful source-The receipt of such income should have been       D
intimated by the public servant in accordance with the law applicable to
him.

      Section 13(/)(e)-Ojfence under-Ingredients of-Burden of proof-
Held: (i) Disproportionate to known sources of income and (ii) inability of
public servant to account for it-Burden of proof on the first ingredient is   E
on the prosecution and on the second is on the public servant.

     Constitution of India, 1950: Articles 136 and 141.

     SLP-Dismissa/ of-Effect-Held: Does not amount to upholding of the
law propounded in the decision challenged                                     F
      Practice and Procedure:

     Concession-On a legal proposition-Resiled from-Permissibility-
Held: A party can retract or resile from such a concession.
                                                                              G
      Some of the former Ministers were prosecuted before a Special Court
for the offence, inter alia, under Section 13(1)(e) of the Prevention of
Corruption Act, 1988. They were indicted on the premise that they were
public servants during the relevant time and that each one had amassed
wealth disproportionate to his/her known sources of income, for which he/
                                    135                                       H
        136                     SUPREME COURT REPORTS [1999] SUPP. I S.C.R.

    A she was unable to account. But in all such cases some of their kith and kin
        were also being arraigned as- co-a9Ct1sed to face the said offence read with
        Section 109 of the Penal Code, 1860.

             The appellants-kith and kin of the former Ministers-filed petitions
        before the High Court challenging their prosecution, which were dismissed.
    B   The Union of India was made a respondent before the High Court, which
        conceded, to the legal position espoused by the appellants.

              On behalf of the appellant it was contended that the offence under
        Section 13(1)(e) of the P.C. Act was unabettable by non-public servants and,
        therefore, the appellants could not be tried along with the public servants.
    c
              On behalf of the respondent it was contended that the High Court in
        an earlier case had held that the offence under Section 13(1)(e) of the P.C.
        Act could be abetted by a non-public servant and that this Court had dismissed.
        the Special Leave Petition challenging the aforesaid decision.

    D         Dismissing the appeals, this Court

              HELD: 1.1. Section 13(1)(e) of the Prevention of Corruption Act, 1988
        encompasses the offences committed in conspiracy with others or by abetment
/       of "any of the offences" punishable under the P.C. Act. If such conspiracy
        or abetment of "any of the offences" punishable under the P.C. Act can be
    E   tried "only" by the Special Judge, it is inconceivable that the a better or the
        conspirator can be declinded from the delinquent public servant for the
        purpose of trial of the offence. If a non-public servant is also a member of
        the criminal conspiracy for a public servants to commit any offence under
        the P.C. Act, or if such non-public servant has abetted any of the offences
        which the public servant commits, such non-public servant is also liable to
    F   be tried along with the public servant before the court of a Special Judge
        having jurisdiction in the matter. [140-G-H; 141-A]

              1.2. It is true that Section 11 deals with a case of abetment of offences
        defined under Section 8 and Section 9, and it is also true that Section 12
    G   specifically deals with the case of abetment of offences under Sections 7 and
        11. But that is no ground to hold that the P.C. Act does not contemplate
        abetment of any of the offences specified in Section 13 of the P.C. Act.
                                                                                [141-F)

           2. As per the Explanation to Section 13(l)(e) of the P.C. Act, the
    H "known sources of income" of the public servant. for the purpose of satisfying
                  P. NALLAMMAL v. STATE REPRES. BY INSPECTOR OF POLICE            137

       ·the court, should be" any lawful sources". Besides being the lawful source       A
        the Explanation further enjoins that receipt of such income should have been
        intimated by the public servant in accordance with the provisions of any law
        applicable to such public servant at the relevant time. So a public servant
        cannot now escape from the tentacles of Section 13(1)(e) of the P.C. Act by
        showing other legally forbidden sources, albeit such sources are outside the     B
        purview of clauses (a) to (d) of the sub-section. [144-A-B)

              3. Thus, two postulates must combine together for crystallization into
        the offence, namely, possession of property or resources disproportionate to
        the known sources of income of the public servant and the inability of the
        public servant to account for it. Burden of proof regarding the first limb is    C
        on the prosecution whereas the onus is on the public servant to prove the
        second limb. (142-D-E]

              M Krishna Reddy v. State Dy. Supdt.. of Police, (1992) 4 SCC 45,
        relied on.
                                                                                         D
              4. Dismissal of the Special Leave Petition will not amount to upholding
        of the law propounded in the decision challenged through that special leave
        Petition. [139-C)

             Indian Oil Corporation Ltd. v. State of Bihar, (1986] 4 SCC 146;
        Union of India v. All India Services Pensioners Association, (1988) 2 sec        E
        580 and Supreme Court Employees Welfare Association v. Union of India,
:...    (1989] 4 sec 187, relied on.

              5. It is open to the State or Union of India or even a private party to
        retrace or even resile from a concession once made in the court on a legal
        proposition. Firstly, because the party concerned, on a reconsideration of the   F
        proposition, could comprehend a different construction as more appropriate.
        Secondly, the construction of a statutory provision cannot rest entirely on
        the stand adopted by any party in the list. Thirdly, the parties must be left
        free to aid the court in reaching the correct construction to be placed on a
        statutory provision. They cannot be nailed to a position on the legal            G
        interpretation, which they adopted at a particular point of time because saner
        thoughts can throw more light on the same subject at a later stage.
                                                                       (139-G; 140-A)

            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
        758-770ofl999.                                            H
    138                      SUPREME COURT REPORTS [1999] SUPP. I S.C.R.

A          From the Judgment and Order dated 25.1.99 of the Madras High Court
    in Crl. R.C. No. 190/98, 314-315/98, 442-449, 490-491 cif 1998.

        K.K. Venugopal, K.V. Venkataraman, K.V. Vishwanathan and N. Jothi
    Kunwar Ajit M. Singh for the Appellant.

B        Shanti Bhushan, V.R. Re9dy, N. Natarajan, R. Mohan R.
    Shanmughasundaram and V.G. Pragasam for the Respondents.

          The Judgment of the Court was delivered by

          THOMAS, J. Leave granted.
c
          Some of the fonner Ministers of the Tamil Nadu Government in the
    Ministry headed by the erstwhile Chief Minister Smt. Jayalalitha are being
    prosecuted before certain Special Courts for the offence, inter a/ia, under
    Section 13(l)(e) of the Prevention of Corruption Act, 1988 (for short "the P.C.
    Act"). The fonner speaker of the Tamil Nadu Legislative Assembly (when Smt.
D   Jayalalitha was the Chief Minister) is also facing a similar charge. They are
    indicted on the premise that they were public servants during the relevant
    time and that each one has amassed wealth disproportionate to his/her known
    sources of income, for which he/she is unable to account.

E         But in all such cases, some of their kith and kin are also being arraigned
    as co-accused to face the said offence read with Section I 09 of the Indian
    Penal Code (for short "the Penal Code"). Appellants herein are all those kith
    and kin who are now being proceeded against for the said offences in
    conjunction with the public servant concerned. They raised preliminary
    objections before the Special Courts on various grounds for pre-charge
F   exoneration, but the Court repelled all such objections. They moved the High
    Court of Madras against such orders, but a learned Single Judge who heard
    the motions together, along with certain other petitions arising from the same
    prosecution proceedings, dismissed all the petitions by a common order,
    which is now being challenged in these appeals.
G
           Appellants have restricted their contentions, in these appeals, to the
    question whether they are liable to be prosecuted along with public servants '
    for the offence under Section 109 of the Penal Code.read with Section 13(l)(e)
    of the P.C. Act. Shri K.K. Venugopal, learned senior counsel arguing for the
    appellants submitted his point broadly that the offence under Section 13(I)(e)
H   of the P.C. Act is unabettable, since the nub of the offence is the failure of
      P. NALLAMMAL v. STATE REPRES. BY INSPECTOR OF POLICE [THOMAS, J.]      139
  the public servant to account for the excess wealth which none else can           A
,·possibly do.

       Respondent - State of Tamil Nadu has produced a copy of the decision
 rendered by a learned Single Judge of the Madras High Court dated 17-6-1988,
 in which the identical question was considered when it arose under Section         B
 5(1) of the Prevention of Corruption Act, 1947 (for short "the old P.C. Act")
 wherein it was held that "the offence of acquiring and being in possession
 of disproportionate assets can be abetted by another including one who is
 not a public servant". It was pointed out by the respondent that the aforesaid
 decision was challenged before this Court through a special leave petition
 and on 14-12-1988 this Court has dismissed the said petition. Shri K.K.            C
 Venugopal has rightly contended that dismissal of the special leave petition
 will not amount to upholding of the law propounded in the decision challenged
 through that special leave petition. The aforesaid legal position seems. to be
 well nigh settled. vide Indian Oil Corporation Ltd. v. State of Bihar, [1986]
 4 SCC 146 and Union of India v. All India Services Pensioners Association,
 [1988] 2 SCC 580 and Supreme Court Employees Welfare Association v. Union          D
 of India, [1989] 4 SCC 187.

         Shri Shanti Bhushan, learned counsel appearing for the respondent -
  State submitted that it would be a dangerous proposition that the offence
-·under Section 13(1)(e) of the P.C. Act is unabettable because a non public        E
  servant who actively aids and facilitates the perpetration of the said offence
  would move at large with immu'nity. Learned counsel pointed out a few
  illustrations to drive the point home that such offence is clearly abettable by
  others and the abettors cannot be insulated from the reach of law.

        Union of India was made a respondent before the Madras High Court           F
 and one Under Secretary to the Government of India had filed a counter
 affidavit therein on 1-12-1998 conceding to the legal position espoused by the
 appellants. But Shri V.R. Reddy, learned senior counsel now appearing for the
 Union. of India strongly supported the stand adopted by the State of Tamil
 Nadu. The volte-face of the Union of India cannot be frowned at, for, it is        G
 open to the State or Union of India or even a private party to retrace or even
 resile from a concession once made in the court on a legal proposition. Firstly,
 because the party concerned, on a reconsideration of the proposition could
 comprehend a different construction a·s more appropriate. Secondly, the
 construction of statutory provision cannot rest entirely on the stand adopted
 by any party in the lis. Thirdly, the parties must be left free to aid the court   H
    140                       SUPREME COURT REPORTS [1999] SUPP. 1 S.C.R.

A   in reaching the correct construction to be placed on a statutory provision.
    They cannot be nailed to a position on the legal interpretation which they
    adopted at a particular point of time because saner thoughts can throw more ~
    light on the same subject at later stage.

           Before dealing with the contention advanced by the appellants we may
B   point out that Section 4 of the P.C. Act confers exclusive jurisdiction to
    Special Judges appointed under the P.C. Act to try the offences specified in
    Section 3(1) ofthe P.C. Act. To understand the exclusivity of such jurisdiction
    it is advantageous to extract Section 4(1) of the P.C. Act as under:

            "Notwithstanding anything contained in the Code of Criminal
c           Procedure, 1973 (2 of 1974), or in any other law for the time being in
            force, the offences specified in sub-section (1) of section 3 shall be
            tried by special Judges only."

           The placement of the monosyllable "only" in the sub-section is such
D   that the very object of the sub-section can be discerned as to emphasize the
    exclusivity of the jurisdiction of the Special Judges to try all offences enveloped
    in Section 3(1 ). That can be further noticed while reading that sub-section.
    It is as follows:

            "The Central Government or the State Government may, by notification
            in the ·official Gazette, appoint as many special Judges as may be
E
            necessary for such area or areas or for such case or group of cases
            as may be specified in the notification to try the following offences,
            namely:-

            (a) any offence punishable under this Act; and
F           (b) any conspiracy to commit or any attempt to commit or any abetment
            of any of the offences specified in clause(a)."

          Thus, clause (b) of the sub-section encompasses the offences committed
    in conspiracy with others or by abetment of "any of the offences" punishable
G   under the P.C. Act. If such conspiracy or abetment of "any of the offences"
    punishable under the P.C. Act can be tried "only" by the Special Judge, it is
    inconceivable that the abettor or the conspirator can be delinked from the
    delinquent public servant for the purpose of trial of the offence. If a non-
    public servant is also a member of the criminal conspiracy for a public servant ,
    to commit any offence under the P.C. Act, or if such non-public servant has
H   abetted any of the offences which the public servant commits, such non-
                   P. NALLAMMAL v. STATE REPRES. BY INSPECTOR OF POLICE [THOMAS, J.]      141

              public servant is also liable to be tried along with the public servant before     A
              the court of a Special Judge having jurisdiction in the matter.

                    Shri K.K. Venugopal, learned senior counsel contended that P.C. Act,
              being a special enactment has taken into its fold specific cases of abetment
              of offences. Vide Sections IO and 12 of the P.C. Act. Those sections are
              extracted below:                                                                   B
                     "10. Punishment for abetment by public servant of offences defined
                     in section 8 or 9.-Whoever, being a public servant, in respect of
                     whom either of the offences defined in section 8 or section 9 is
                     committed, abets the offence, whether or not that offence is committed
                     in consequence of that abetment, shall be punishable with imprisonment C
                     for a term which shall be not less than six months but which may
                     extend to five years and shall also be liable to fine."

                     "12. Punishment for abetment of offences defined in section 7 or
                     I I .-Whoever abets any offence punishable under section 7 or section D
                      l l whether or not that offence is committed in consequence of that
          /
                     abetment, shall be punishable with imprisonment for a term which
                     shall be not less than six months but which may extend to five years
                     and shall also be liable to fine."                                  ·

              According to the learned counsel since no other type of abetment is made           If
              specifically punishable under the P.C. Act there cannot be any question of
              a non-public servant abetting the offence under Section 13{l){e) of the P.C.
              Ad                                        .

                    It is true that Section 11 deals with a case of abetment of offences
              defined under Section 8 and section 9, and it is also true that Section 12         F
              specifically deals with the case of abetment of offences under Sections 7 and
              11. But that is no ground to hold that the P.C. Act does not contemplate
              abetment of any of the offences specified in Section 13 of the P.C. Act.
              Learned counsel focussed on Section 13(I)(e) to elaborate that by the very
              nature of that offence it pertains entirely to the public servant concerned as
              there is no role for the co-accused for discharging the burden of proof.           G
..   '·               Section 13{l)(e) reads thus:

                      "A public servant is said to commit the offence of criminal misconduct,-
                      (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     H
    142                      SUPREME COURT REPORTS (1999] SUPP. 1 S.C.R.

A           public servant cannot satisfactorily account, of pecuniary resources
            or property disproportionate to his known sources of income.
                                                                                       -
            Explanation.- For the purposes 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
B           law, rules or orders for the time being applicable to a public servant."

          It may be remembered that this Court has held in M Krishna Reddy v.
    State Deputy Superintendent of Police, Hyderabad, (1992] 4 SCC 45 thus:

            "An analysis of Section 5(1)(e) of the Act, 1947 which corresponds
c           to Section 13(1Xe) of the new Act of 1988 shows that it is not the mere
            acquisition of property that constitutes an offence under the provisions
            of the Act but it is the failure to satisfactorily account for such
            possession that makes the possession objectionable as offending the        ~---

            law."
D
           Thus, the two postulates must combine together for crystallization into
    the offence, namely, possession of property or resources disproportionate to
    the known sources of income of public servant and the inability of the public
    servant to account for it. Burden of proof regarding the first limb is on the       J
    prosecution whereas the onus is on the public servant to prove the second
E   limb. So it is contended that a non-public servant has no role in the trial of
    the said offence and hence he cannot conceivably be tagged with the public
    servant for the offence under Section 13(l)(e) of the P.C. Act.

           Section 13 of the P.C. Act is enacted as a substitute for Sections 161
    to_ 165-A of the Penal Code which were part of Chapter IX of that Code under
F   the title "All offences by or relating to public servants". Those sections were
    deleted from the Penal Code contemporaneous with the enactment of Section
    31 of the P.C. Act (vide Section 31 of the P.C. Act). It is appropriate to point
    out here that in the original old P.C. Act there wa~ [}O provision analogous
    to Section 13(l)e), but on the recommendation of Santhanam Committee the
G   said Act was amended in 1964 by incorporating Section 5(l)(e) in the old P.C.
    Act. Parliament later proceeded to "consolidate and amend the law relating
    to prevention of corruption" and in the Bill introduced for that purpose the
    following was declared as per the Statement of Objects and Reasons thereof:

            "The prevention of Corruption Act, 1947, was amended in 1964 based
                                                                                        ,_.,...
H           on the recommendations of the Santhanam Committee. There are
                                                                                        "
    P. NALLAMMAL ''·STATE REPRES. BY INSPECTOR OF POLICE [THOMAS, J.J      143

       provisions in Chapter IX of the Indian Penal Code to deal with public       A
       servants and those who abet them by way of the criminal misconduct,
       there are also provisions in the Criminal Law Amendment Ordinance,
       1944, to enable attachment of ill-gotten wealth. The Bill seeks to
       incorporate all these provisions with modifications so as to make the
       provisions more effective in combating corruption among public              B
       servants."

       Thus, one of the objects of the new Act was to incorporate all the
provisions to inake them more effective. Section 165-A of the Penal Code read
like this:

       "Punishment for abetment of offences defined in section 161.or section      C
       165.-Whoever abets any offence punishable under section 161 or
       section 165, whether or not that offence is committed in consequence
       of the abetment, shall be punished with imprisonment of either
       description for a term which may extend to three years, or with fine,
       or with both."                                                              D
      Therefore, the legislative intent is manifest that abettors of all the
different offences under Section l3{l)(e) of the P.C. Act should also be dealt
with along with the public servant in the same trial held by the Special Judge.

       Shri K.K. Venugopal endeavoured to establish that the offence under         E
Section l3(l)(e) of the P.C. Act is to be understood as an offshoot of the
different facets of misconduct of a public servant enumerated in clauses (a)
to ( d) of the sub-section which a public servant might commit. According to
him, unless the ill-gotten wealth has a nexus with the sources contemplated
in the preceding clauses the public servant cannot be held guilty under clause
(e) of Section 13(1). Learned senior counsel elaborated his contention like        F
this: If a public servant is able to account for the excess wealth by showing
some clear sources, though not legally permissible, but not falling under any
of the preceding clauses of the sub-section, he would be discharging the
burden cast on him. He cited an example like this:
                                                                                   G
      If the public servant satisfies the court that the excess wealth possessed
by him is attributable to the dowry amount which he received froni the father-
in-law of his son, the public servant is not liable to be convicted under the
aforesaid clause.

      The above contention perhaps could have been advanced before the             H
    144                     SUPREME COURT REPORTS [1999) SUPP. 1 S.C.R.

A   enactment of the P.C. Act 1988 because Section 5{l)(e) of the old P.C. Act did
    not contain an "Explanation" as Section 13(.l)(e) now contains. As per the
    Explanation the "known sources of income" of the public servant, for the
    purpose of satisfying the court, should be "any lawful source". Besides being
    the lawful source the Explanation further enjoins that receipt of such income
    should have been intimated by the public servant in accordance with the
B   provisions of any law applicable to such public servant at the relevant time.
    So a public servant cannot now escape from the tentacles of Section l3{l)(e)
    of t.he P;C. Act by showing other legally forbidden sources, albeit such
    sources are outside the purview of clauses (a) to (d) of the sub-section.

C         Th&re is no force in the contention that the offences under Section
    l3{1)(e) cannot be abetted by another person. "Abetment" is defined in
    Section I 07 of the Penal Code as under:

           "107. Abetment of a thing.-A person abets the doing of a thing,
           who- First.- Instigates any person to do that thing; or         ·•
D
           Secondly,- Engages with one or more other person or persons in·any   ..
           conspiracy for the doing of that thing, if an act or illegal omission '
           takes place in pursuance of that conspiracy, and in order to the doing
           of that thing; or

E          Thirdly.- intentionally aids, by any act or illegal omission, the doing
           of that thing."

         For the "First" clause (i.e. instigation) the following Explanation is
    added to the section:
F
           "Explanation /.-A person who, by willful misrepresentation, or by
           willful concealment of a material fact which he is bound to disclose
           voluntarily causes or procures, or attempts to cause or procure, a
           thing to be done, is said to instigate the doing of that thing."

G         For the "Thirdly" clause ( i.e. intentionally aids) the following
    Explanation is added:

           "Explanation 2.-Whoever, either prior to or at the time of the-.
           commission of an act, does anything in order to facilitate the
           commission of that act, and thereby facilitates the commission thereof,
H          is said to aid the doing of that act."
    P. NALLAMMAL v. STATE REPRES. BY INSPECTOR OF POLICE [THOMAS, J.]       145
        Shri Shanti Bhushan cited certain illustrations which, according to us,    A
would amplify the cases of abetments fitting with each of the three clauses
in Section 107 of the Penal Code vis-a-vis Section 13(l)(e) of the P.C. Act. The
first illustration cited is this:

      If A, a close relative of the public servant tells him of how other public
servants have become more wealthy by receiving bribes and A persuades the          B
public servant to do the same in order to become rich and the public servant
acts accordingly. If it is a proved position there cannot be any doubt that A
has abetted the offence by instigation.

     Next illustration is this:
                                                                                   c
      Four persons including the public servant decide to raise a bulk amount
through bribery and the remaining persons prompt the public servant to keep
such money in their names. If this is a proved position then all the said
persons are guilty of abetment through conspiracy.

         The last illustration is this:                                            D

      If a public servant tells A, a close friend of him, that he has acquired
considerable wealth through bribery but he cannot keep them as he has no
known source of income to account, he requests A to keep the said wealth
in A's name, and A obliges the public servant in doing so. lf it is a proved       E
position A is guilty of abetment falling under the 'Thirdly" clause of Section
l 07 of the Penal Code.

      Such illustrations are apt examples of how the offence. under Section
l3(l)(e) of the P.C. Act can be abetted by non-public servants. The only mode
of prosecuting such offender is through the trial envisaged in the P.C. Act.       F
      For the aforesaid reasons we are unable to appreciate the contentions
of the appellants that they are not liable to be proceeded against under the
P.C. Act. Accordingly we dismiss these appeals.

V.S.S.                                                     Appeals dismissed.      G