Supreme Court of India
STATE THROUGH DEPUTY SUPERINTENDENT OF POLICEversusR. SOUNDIRARASU ETC.
- Citation
- 2022 INSC 915
- Decided
- 5 September 2022
- Disposal
- Appeal(s) allowed
- Bench
- DINESH MAHESHWARI
Holding
Section 13(1)(e) of the PC Act defines "known sources of income" as those known to the prosecution, the onus to satisfactorily account for disproportionate assets rests on the accused, and a discharge under Section 239 CrPC can be granted only when the material on record fails to make out a prima facie case, not on a detailed assessment of the evidence.
Summary
The State of Tamil Nadu, through a Deputy Superintendent of Police, appealed against the High Court’s order discharging a public servant (R. Soundirarasu) and his wife from prosecution under the Prevention of Corruption Act, 1988 and IPC s.109 for possessing assets disproportionate to the servant’s known sources of income. The High Court had held that the accused could satisfy the onus by showing his wife’s independent income and that the prosecution failed to prove a prima facie case. The Supreme Court examined the statutory interpretation of "known sources of income" under s.13(1)(e) PC Act, the burden of proof, and the limited scope of Section 239 CrPC for discharge applications. It held that "known sources of income" refers to sources known to the prosecution, the onus to account lies on the accused, and that the trial court must only assess whether a prima facie case exists, not conduct a mini‑trial. Consequently, the High Court’s discharge was set aside and the Special Court was directed to frame charges and proceed to trial.
Issues considered
- The meaning of "known sources of income" in Section 13(1)(e) of the Prevention of Corruption Act, 1988 and whose knowledge it refers to.
- Whether the burden of proof under the PC Act shifts to the accused to explain disproportionate assets, and if so, what standard of proof applies.
- The proper scope of Section 239 of the Code of Criminal Procedure, 1973 in discharge applications – whether the court must determine the existence of a prima facie case or may examine the merits of the evidence.
- The extent of the High Court’s revisional jurisdiction under Sections 397 and 401 CrPC in quashing a charge‑sheet.
- Whether the investigating officer is required to give the accused an opportunity to explain alleged disproportionate assets before filing a charge‑sheet.
Legislation cited
- Code of Criminal Procedure, 1973s. 227, s. 228, s. 239, s. 240, s. 245, s. 397, s. 401
- Indian Evidence Act, 1872s. 106
- Indian Penal Code, 1860s. 109
- Prevention of Corruption Act, 1988s. 13(1)(e), s. 13(2)
Subjects
Prevention of Corruption ActDisproportionate assetsSection 239 CrPCPrima facie caseBurden of proofKnown sources of incomeRevisional jurisdictionCharge framingPublic servantCorruption
Judgment
630 [2022]REPORTS
SUPREME COURT 7 S.C.R. 630 [2022] 7 S.C.R.
A STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE
v.
R. SOUNDIRARASU ETC.
(Criminal Appeal Nos. 1452-1453 of 2022)
B SEPTEMBER 05, 2022
[DINESH MAHESHWARI AND J. B. PARDIWALA. JJ.]
Code of Criminal Procedure, 1973: ss.239, 397, 401 –
Discharge of accused – Respondent No.1 was serving as Motor
Vehicle Inspector during the check period – Respondent No. 2 is
C
his wife who is a commerce graduate and is claiming to have a
separate source of income and paying the income tax from 1990
onwards – FIR registered against Respondent No.1 for offences u/
s 13(2) r/w 13(1)(e) PC Act r/w s.109 IPC – During investigation,
role of his wife i.e. Respondent No.2 surfaced as an abettor –
D Charge sheet filed in the Court of the Special Judge – Respondents
filed petition u/s.239 for discharge – Special Judge rejected the
petition and held that there was a prima facie case against the
accused persons to put them to trial for alleged offence and charges
levelled against them cannot be said to be groundless so as to
discharge them from prosecution – Respondents filed revision
E
applications before High Court – High Court discharged the
respondents – On appeal, held: s.13(1)(e) of the PC Act makes a
departure from the principle of criminal jurisprudence that the
burden will always lie on the prosecution to prove the ingredients
of the offences charged and never shifts on the accused to disprove
F the charge framed against him – legal effect of s.13(1)(e) is that it
is for the prosecution to establish that the accused was in possession
of properties disproportionate to his known sources of income but
the term “known sources of income” would mean the sources known
to the prosecution and not the sources known to the accused and
within the knowledge of the accused – It is for the accused to
G
account satisfactorily for the money/assets in his hands – The onus
in this regard is on the accused to give satisfactory explanation –
accused cannot make an attempt to discharge this onus upon him at
the stage of s.239 – The circumstances emerging from the record of
the case indicate the involvement of the accused persons in the
H alleged offence – It cannot be said that the charge against the
630
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v. 631
R. SOUNDIRARASU ETC.
accused persons was groundless – Special Court directed to frame A
charges against the accused persons and put them to trial – Penal
Code,1860 – s.109 - Evidence Act, 1872 – s.106 – Prevention of
Corruption Act, 1988 – ss.13(2), 13(1)(e).
Prevention of Corruption Act, 1988: Known sources of income
– Defined – It refers to the sources known to the prosecution and B
not to the accused.
Prevention of Corruption Act, 1988: The onus or burden is
on the accused to satisfactorily explain and account for the assets
found to be possessed by the public servant.
Prevention of Corruption Act, 1988: Whether the investigating C
officer before filing FIR should consider explanation offered by
the accused – Held: The accused public servant does not have a
right to be afforded a chance to explain the alleged disproportionate
assets to the investigating officer before the filing of a chargesheet,
a similar right cannot be granted to the accused before the filing of D
an FIR by making a preliminary inquiry mandatory.
Code of Criminal Procedure, 1973: Stage of charge framing
– Approach of Court – Court has to form a presumptive opinion as
to the existence of the factual ingredients constituting the offence
alleged – Court is not required to go deep into the probative value E
of the materials on record.
Code of Criminal Procedure, 1973: s.239 – Prima facie case
u/s.239 – If the Magistrate considers the charge against the accused
to be groundless, he shall discharge the accused – The word
‘groundless’ means that there must be no ground for presuming that F
the accused has committed the offence and that the materials placed
before the Court do not make out or are not sufficient to make out
a prima facie case against the accused – If no prima facie case
regarding the commission of any offence is made out, it would
amount to a charge being groundless.
G
Code of Criminal Procedure, 1973: Revisional powers of High
Court – Ambit and scope of – Held: Revisional power can only be
exercised to correct manifest error of law or procedure which would
occasion injustice, if it is not corrected – The revisional power cannot
be exercised in a casual or mechanical manner – Revisional power
cannot be equated with appellate power – A revisional court cannot H
632 SUPREME COURT REPORTS [2022] 7 S.C.R.
A undertake meticulous examination of the material on record as it is
undertaken by the trial court or the appellate court – This power
can only be exercised if there is any legal bar to the continuance of
the proceedings or if the facts as stated in the charge sheet are
taken to be true on their face value and accepted in their entirety
do not constitute the offence for which the accused has been charged
B
– It is conferred to check grave error of law or procedure.
Allowing the appeals, the Court
HELD : 1. The expression “known sources of income”
refers to the sources known to the prosecution, the expression
C “for which the public servant cannot satisfactorily account” refers
to the onus or burden on the accused to satisfactorily explain and
account for the assets found to be possessed by the public servant.
This burden is on the accused as the said facts are within his
special knowledge. The explanation to Section 13(1)(e) is a
procedural Section which seeks to define the expression “known
D sources of income” as sources known to the prosecution and not
to the accused. The explanation applies and relates to the mode
and manner of investigation to be conducted by the prosecution,
it does away w ith the requirement and necessity of the
prosecution to have an open, wide and rowing investigation and
E enquire into the alleged sources of income which the accused
may have. It curtails the need and necessity of the prosecution
to go into the alleged sources of income which a public servant
may or possibly have but are not legal or have not been declared.
The undeclared alleged sources are by their very nature are
expected to be known to the accused only and are within his
F special knowledge. The effect of the explanation is to clarify and
reinforce the existing position and understanding of the
expression “known sources of income” i.e. the expression refers
to sources known to the prosecution and not sources known to
the accused. The second part of the explanation does away with
G the need and requirement for the prosecution to conduct an open
ended or rowing enquiry or investigation to find out all alleged/
claimed known sources of income of an accused who is
investigated under the PC Act, 1988. The prosecution can rely
upon the information furnished by the accused to the authorities
H
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v. 633
R. SOUNDIRARASU ETC.
under law, rules and orders for the time being applicable to a A
public servant. No further investigation is required by the
prosecution to find out the known sources of income of the accused
public servant. [Para 41][666-G-H; 667-A-E]
2. In trial of a warrant case, instituted on a police report,
the provisions for discharge are to be governed as per the terms B
of Section 239 which provide that a direction for discharge can
be made only for reasons to be recorded by the court where it
considers the charge against the accused to be groundless. As
per the provisions under Section 239 what needs to be considered
is whether there is a ground for presuming that the offence has
C
been committed and not that a ground for convicting the accused
has been made out. At that stage, even strong suspicion founded
on material which leads the Court to form a presumptive opinion
as to the existence of the factual ingredients constituting the
offences alleged would justify the framing of charge against the
accused in respect of that offence, and it is only in a case where D
the Magistrate considers the charge to be groundless, he is to
discharge the accused after recording his reasons for doing so.
Section 239 envisages a careful and objective consideration of
the question whether the charge against the accused is groundless
or whether there is ground for presuming that he has committed
E
an offence. What Section 239 prescribes is not, therefore, an
empty or routine formality. It is a valuable provision to the
advantage of the accused, and its breach is not permissible under
the law. But if the Judge, upon considering the record, including
the examination, if any, and the hearing, is of the opinion that
there is “ground for presuming” that the accused has committed F
the offence triable under the chapter, he is required by Section
240 to frame in writing a charge against the accused. The order
for the framing of the charge is also not an empty or routine
formality. It is of a far reaching nature, and it amounts to a decision
that the accused is not entitled to discharge under Section 239,
G
that there is,ground for presuming that he has committed an
offence triable under Chapter XIX and that he should be called
upon to plead guilty to it and be convicted and sentenced on that
plea, or face the trial. [Paras 59 & 60][677-D-H; 678-A-C]
H
634 SUPREME COURT REPORTS [2022] 7 S.C.R.
A 3. Section 239 has to be read along with Section 240 of the
CrPC. If the Magistrate finds that there is prima facie evidence
or the material against the accused in support of the charge,he
may frame charge in accordance with Section 240 of the CrPC.
But if he finds that the charge (the allegations or imputations)
made against the accused does not make out a prima facie case
B
and does not furnish basis for framing charge, it will be a case of
charge being groundless, so he has no option but to discharge
the accused. Where the Magistrate finds that taking cognizance
of the offence itself was contrary to any provision of law, like
Section 468 of the CrPC, the complaint being barred by limitation,
C so he cannot frame the charge, he has to discharge the accused.
Indeed, in a case where the Magistrate takes cognizance of an
offence without taking note of Section 468 of the CrPC, the most
appropriate stage at which the accused can plead for his discharge
is the stage of framing the charge. He need not wait till completion
of trial. The Magistrate will be committing no illegality in
D
considering that question and discharging the accused at the stage
of framing charge if the facts so justify.The real test for
determining whether the charge should be considered groundless
under Section 239 of the CrPC is that whether the materials are
such that even if unrebutted make out no case whatsoever, the
E accused should be discharged under Section 239 of the CrPC.
The trial court will have to consider, whether the materials relied
upon by the prosecution against the applicant for the purpose of
framing of the charge, if unrebutted, make out any case at
all.[Paras 68 & 69][680-D-H; 681-A]
F 4. The revisional power cannot be exercised in a casual or
mechanical manner. It can only be exercised to correct manifest
error of law or procedure which would occasion injustice, if it is
not corrected. The revisional power cannot be equated with
appellate power. A revisional court cannot undertake meticulous
examination of the material on record as it is undertaken by the
G trial court or the appellate court. This power can only be exercised
if there is any legal bar to the continuance of the proceedings or
if the facts as stated in the charge-sheet are taken to be true on
their face value and accepted in their entirety do not constitute
the offence for which the accused has been charged. It is conferred
H to check grave error of law or procedure. [Para 76][683-F-G]
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v. 635
R. SOUNDIRARASU ETC.
5. Section 13(1)(e) of the Act 1988 makes a departure from A
the principle of criminal jurisprudence that the burden will always
lie on the prosecution to prove the ingredients of the offences
charged and never shifts on the accused to disprove the charge
framed against him. The legal effect of Section 13(1)(e) is that it
is for the prosecution to establish that the accused was in
B
possession of properties disproportionate to his known sources
of income but the term “known sources of income” would mean
the sources known to the prosecution and not the sources known
to the accused and within the knowledge of the accused. It is for
the accused to account satisfactorily for the money/assets in his
hands. The onus is on the accused to give satisfactory explanation. C
The accused cannot make an attempt to discharge this onus upon
him at the stage of Section 239 of the CrPC. At the stage of Section
239 CrPC, the Court has to only look into the prima facie case
and decide whether the case put up by the prosecution is
groundless.[Para 80][684-F-H; 685-A]
D
6. The circumstances emerging from the record of the case,
prima facie, indicate the involvement of the accused persons in
the alleged offence. Having regard to the materials on record, it
cannot be said that the charge against the accused persons is
groundless. There are triable issues in the matter. If there are
triable issues, the Court is not expected to go into the veracity E
of the rival versions.The impugned orders passed by the High
Court discharging the accused persons from the prosecution are
hereby set aside. The Special Court shall frame charge against
the accused persons in accordance with law and put them to trial.
[Paras 81 & 82][685-B-D] F
State of Maharashtra v. Wasudeo Ramchandra
Kaidalwar (1981) 3 SCC 199 : [1981] 3 SCR 675; N.
Ramakrishnaiah v. State of A.P. 2009 Crl.L.J. 1767;
Central Bureau of Investigation (CBI) and Anr. v.
Thommandru Hannah Vijayalakshmi @ T.H. G
Vijayalakshmi and Anr. 2021 SCC OnLine SC 923;
K. Veeraswami v. Union of India (1991) 3 SCC 655 :
[1991] 3 SCR 189; Onkar Nath Mishra and Others v.
State (NCT of Delhi) and Another (2008) 2 SCC 561 :
[2007] 13 SCR 716; State of Maharashtra v. Som Nath
H
636 SUPREME COURT REPORTS [2022] 7 S.C.R.
A Thapa (1996) 4 SCC 659 : [1996] 1 Suppl. SCR 189;
State of M.P. v. Mohanlal Soni (2000) 6 SCC 338;
Sheoraj Singh Ahlawat and others v. State of Uttar
Pradesh and Another (2013) 11 SCC 476 : [2012] 10
SCR 1034; Century Spinning and Manufacturing Co.
Ltd. v. State of Maharashtra AIR 1972 SC 545,
B
Superintendent and Remembrancer of Legal Affairs,
West Bengal v. Anil Kumar Bhunja AIR 1980 SC 52 :
[1980] 1 SCR 323; Munna Devi v. State of Rajasthan
& Anr. (2001) 9 SCC 631 – relied on.
State of Orissa v. Debendra Nath Padhi (2005) 1 SCC
C 568 : [2004] 6 Suppl. SCR 460; State of Tamil Nadu by
Inspector of Police, Vigilance and Anti-Corruption v.
N. Suresh Rajan and Others (2014) 11 SCC 709 :
[2014] 1 SCR 135; Jagan M. Seshadriv. State of Tamil
Nadu, (2002) 9 SCC 639; Sajjan Singh v. State of
D Punjab AIR 1964 SC 464 : [1964] 4 SCR 630; C.D.S.
Swami v. State, AIR 1960 SC 7 : [1960] 1 SCR 461; V.
C. Shukla v. State through CBI AIR 1980 SC 962 :
[1980] 2 SCR 380; K. Ramakrishna and Others v. State
of Bihar and Another (2000) 8 SCC 547; State by
Karnataka Lokayukta, Police Station, Bengaluru v. M.
E R. Hiremath (2019) 7 SCC 515 : [2019] 8 SCR 713;
Asian Resurfacing of Road Agency Pvt. Ltd. v. Central
Bureau of Investigation (2018) 16 SCC 299 : [2018] 2
SCR 1045 – referred to.
Case Law Reference
F
[2004] 6 Suppl. SCR 460 referred to Para 22
[2014] 1 SCR 135 referred to Para 24
[1981] 3 SCR 675 relied on Para 29
(2002) 9 SCC 639 referred to Para 35
G
[1964] 4 SCR 630 referred to Para 39
[1960] 1 SCR 461 referred to Para 39
[1991] 3 SCR 189 relied on Para 43
H [2007] 13 SCR 716 relied on Para 55
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v. 637
R. SOUNDIRARASU ETC.
[1996] 1 Suppl. SCR 189 relied on Para 55 A
(2000) 6 SCC 338 relied on Para 55
[2012] 10 SCR 1034 relied on Para 58
[1980] 2 SCR 380 referred to Para 60
AIR 1972 SC 545 relied on Para 64 B
[1980] 1 SCR 323 relied on Para 66
(2000) 8 SCC 547 referred to Para 70
[2019] 8 SCR 713 referred to Para 71
C
(2001) 9 SCC 631 referred to Para 75
[2018] 2 SCR 1045 referred to Para 77
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 1452-1453 of 2022.
From the Judgment and Order dated 27.04.2017 of the High Court D
of Judicature at Madras in Criminal Revision Case Nos.702 and 703 of
2016.
V. Krishnamurthy, AAG, Dr. Joseph Aristotle S., Nupur Sharma,
Shobhit Dwivedi, Sanjeev Kumar Mahara, Ms. Richa Vishwakarma,
Advs. for the Appellant. E
K. Radhakrishnan, Sr. Adv., D. L. Chidananda, R. Janarthanan,
S. Senthil Elangovan, S. Krishnamoorthy, K. Kumaravadivel, Advs. for
the Respondents.
The Judgment of the Court was delivered by
F
J. B. PARDIWALA, J.
1. Leave granted.
2. Since the issues raised in both the captioned appeals are the
same, those were heard analogously and are being disposed of by this
common judgment and order. G
3. These appeals are at the instance of the State of Tamil Nadu
through the Deputy Superintendent of Police, Vigilance and Anti-
Corruption, Salem District, Tamil Nadu and are directed against the two
judgments and orders passed by the High Court of Madras dated
H
638 SUPREME COURT REPORTS [2022] 7 S.C.R.
A 27.04.2017 allowing the criminal revision applications preferred by the
respondents herein (original accused persons) discharging them from
the prosecution under Section 13(2) read with 13(1)(e) of the Prevention
of Corruption Act, 1988 (for short, “Act 1988”) read with Section 109 of
the Indian Penal Code (for short, “the IPC”).
B FACTUAL MATRIX
4. The Respondents in these appeals are husband and wife. The
Respondent No.1 - R. Soundirarasu at the relevant point of time was
serving as a Motor Vehicle Inspector (Grade 1) at Namakkal during the
check period, i.e., from 01.01.2002 to 31.03.2004. The Respondent No.
C 2, namely, Suguna is the wife of the Respondent No. 1.
5. The Respondent No. 2 is a commerce graduate and claims to
be having a separate source of income. She was a partner in a partnership
firm running in the name of S.K. Mat Industries along with one R. Kumar
w.e.f. 23.10.1993. The partnership came to be dissolved on 31.03.2003,
and, thereafter she continued as a sole proprietor.
D
6. It is the case of the Respondent No. 2 that she has been paying
the income tax from 1990 onwards and her IT Returns are being
scrutinized by the appropriate authorities.
7. It appears from the materials on record that a First Information
E Report (FIR) came to be registered against the Respondent No. 1 herein
dated 19.09.2005 at the Police Station, Vigilance and Anti-Corruption,
District Salem for the offences under the Act 1988 as enumerated above.
8. For better and effective adjudication of the present appeals,
we deem it necessary to reproduce the entire FIR as under:
F “Column No. 12 in FIR Cr. No.9/AC/2005/SL/SU
Tr. R. Sundararasu was working as Motor Vehicle
Inspector Grade-1 at the office of the Regional Transport
Officer, Namakkal, Rasipuram and Sankari from March 98
to May 2000 to July 2002 and September 2002 to
G September2004 respectively and again in Namakkal from
27.09.2004. He is a Public Servant as defined u/s 2 (C) of
Prevention of Corruption Act, 1988.
The accused Tr. R. Sundararasu, Motor Vehicle
Inspector Grade-1 hailed from an ordinary agricultural
family. He is a second son to his parents. Tr. Ramasamy and
H
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v. 639
R. SOUNDIRARASU ETC. [J. B. PARDIWALA, J.]
Tmt. Krishnammal. He has got diploma in Mechnaical A
Engineering and got B.E., degree by attending evening
classes. He got married one Suguna D/o Tr. Duraisamy of
Kavai on 12.2.90. He has got one son by name Sarankumar
who is studying VIIth standard in Holy Matriculation School,
Salem.
B
On receipt of credible information that the accused has
acquired and he is in possession of assets in the form of house
sites, lands, house building etc in his name and in the name
of his wife and father-in-law, worth more than his known
sources of income, a preliminary verification made, during
which the following information has come to notice. C
As on 1.1.2002, the accused is found to have been in
possession of assets in his name and in the name of his wife
Tmt. Suguna, gold jewels, Silver ornaments, household
articles etc. by way of gift and purchase etc. all worth about
Rs. 3,75,250.00. D
As on 29.2.2004, the accused is found to have been in
possession of properties and pecuniary resources in the name
of his wife Smt. Suguna, his father-in-law Thiru.Duraisamy
and his minor son Sarankumar of a total value of Rs.
18,41,680.00. These include, a part from the properties and E
pecuniary resources in his possession as on 1.1.2002.
Additionally acquired properties and pecuniary resources
such as House Building and construction of house building.
During the period from 1.1.2002 and 29.2.2004, the
accused is found to have acquired the following properties: F
(i) Constructed a terraced house worth about Rs.7,99,500/- in the
name of his wife Tmt. Suguna at Door No.555, situated in
S.No.11/1266 of Ganapathy Village, Ganapathypuram,
Coimbatore after demolishing the old terrace house.
(ii) Purchased a terraced building worth Rs.8,61,270 /- with a plinth
area of 70 Sq. metre on the ground floor and 10 Sq. Metre on the
G
1st floor in Bodinaikanpatty village S.No.69/1-A1 in the name of
his father-in-law Tr.Duraisamy under Doc.No.499/2004 dt.
6.2.2004 of SRO, Sooramangalam and the same was transferred
in the name of Sarankumar, the minor son of the accused, by way
of Settlement Deed in Doc.No.645/2004, Dt. 16.02.2004 by the
said Tr.Duraisamy incurring a sum of Rs.5,160/- towards stamp
duty and registration fees.
H
640 SUPREME COURT REPORTS [2022] 7 S.C.R.
A The Total value of the properties and pecuniary
resources acquired by the accused during the period from
1.1.2002 to 29.2.2004 has been tentatively estimated to be
Rs.14,66,430/-
Accused’s wife Smt. Suguna is a house wife. She is found
B to have had no sufficient sources of income of her own to
acquire the aforementioned assets. So also, Tr. Duraisamy,
the father-in-law of the accused appears to have had no
necessity for the purchase and transfer of the property in the
name of the grand son (son of the accused). Thus, the accused
appears to have acquired the above properties in the name
C of aforesaid persons as his benami (benamis).
The total income of the accused and his family members
and expenditure of the accused and his family during the
above said period (i.e.1.1.2002 to 29.2.2004) have been
tentatively assessed as Rs.8,84,486 and 11,00, 198 respectively
D and hence there was no likely savings for the above said
period and on the contrary there was an excess expenditure
over the income of the accused to the extent of
Rs.2,15,712/-.
There are grounds to believe that the aforesaid assets
E are for beyond and disproportionate to the known sources of
income of the accused for the above said period to the extent
of Rs.16,82,142 (Rs.14,66,430+2,15,712).
The above information discloses an offence of criminal
misconduct by public servant punishable u/ s 13(2) r /w
F 13(1)(e) of prevention of Corruption Act, 1988, against the
accused and requires a detailed investigation.
I am therefore, registering a case in Cr.No.9/AC/2005/
SL/SU against the accused for the above said offence for the
purpose of taking up investigation.
G
(SdXXX)
(K.PERIYASAMY)
DSP, V&AC, Spl.Cell,
H Salem.”
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v. 641
R. SOUNDIRARASU ETC. [J. B. PARDIWALA, J.]
9. It appears that vide the letter dated 16.10.2007 the investigating A
officer called for the explanation from the Respondent No. 1 as regards
the allegations levelled in the FIR.
10. The Respondent No. 1 vide his letter dated 1.11.2007 offered
his explanation stating that he does not possess or had acquired any
assets disproportionate to the known source of his income. The B
Respondent No. 1 also placed on record the income tax returns filed by
his wife from 1990 onwards and that of the partnership firm too from
1993.
11. It appears that in the course of investigation the role of the
Respondent No. 2 as the wife of the Respondent No. 1 also surfaced as C
an abettor.
12. Upon conclusion of the investigation, the Investigating Agency
filed charge-sheet in the Court of the Special Judge, Salem for the offences
enumerated above. The filing of the charge-sheet culminated in the
registration of the Special Criminal Case No. 36/2008 in the Court of the D
Special Judge, Salem.
13. In such circumstances referred to above, the Respondents
preferred Crl. M.P. Nos. 87 and 86 of 2014 resply under Section 239 of
the Code of Criminal Procedure (for short, ‘the CrPC’) seeking discharge
from the trial essentially on the ground of lack of any prima facie case E
against them.
14. The Special Judge adjudicated both the aforesaid applications
filed by the respondents and thought fit to reject those by two separate
orders dated 29.03.2016. While rejecting the Crl. M.P. No. 86 of 2014
filed by the respondent No. 2 (wife of respondent No. 1), the Special F
Judge observed as under :-
“15. Yet another ground urged by the petitioner is that the
income derived by the petitioner being partner in S.K. Mat
Industries and by doing money lending business was not given
due credit by the Investigating Officer and as such the decision
G
arrived at by the Investigating Officer that the petitioner has
no wherewithals to acquire the properties standing in her name
and described in Statement II and to treat the said properties
as the properties acquired by the 1st accused in the name of
the petitioner is totally wrong. The Investigating Officer in
his final report has categorically mentioned that no documents H
642 SUPREME COURT REPORTS [2022] 7 S.C.R.
A were produced during investigation, either by the petitioner
or her husband, to showcase the income derived by the
petitioner by doing money lending business. Even in the present
application there is no whisper in this regard by the petitioner.
The contentious issue as to whether the petitioner derived
income from S.K. Mat Industries and through money lending
B
business can be decided only during trial based on the
evidence placed before the court in this regard. Hence this
court decides that the above ground urged by the petitioner
is a pre-matured one and thus cannot be entertained at the
time of framing charges.
C 16. In the present case the total value of assets and pecuniary
resources held by the petitioner, her husband and son at the
end of the check-period has been computed by the
Investigating Officer at Rs.31,69,498/- as set out in Statement
II. During investigation the petitioner and her husband have
D not produced any documents except the Income-Tax returns
of the petitioner to trace the source of income of the petitioner
to acquire the properties that stood recorded in her name
during the check-period. Hence the Investigating Officer has
proceeded to treat the properties standing in the name of the
petitioner and her minor son as the properties of the
E petitioner’s husband, the lst accused, which cannot be found
fault at this stage more so when the petitioner’s husband has
not disclosed the acquisition of properties by his wife, the
petitioner herein, to the concerned Department as required
under Tamil Nadu Government Servants Conduct Rules.
F Hence this court decides that, at this stage, there is no
substance in the contention’ of the petitioner that the
methodology adopted by the Investigating Officer in
computing the value of the assets of the petitioner’s husband
is erroneous.
G x x x x x
18. The materials produced by the Investigating Officer along
with the final report prima facie disclose the existence of all
the ingredients essential to constitute the offence U / s 13 (2)
r/w 13 (2) r/w 13 (1) (e) of the Prevention of Corruption Act
H read with Sec : 109 of the IPC alleged to have been committed
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v. 643
R. SOUNDIRARASU ETC. [J. B. PARDIWALA, J.]
by the petitioner. Since the offence alleged against the A
petitioner and her husband are grave in nature the petitioner
cannot be let scot free without facing trial and without
affording an opportunity to the prosecution to establish the
case during trial by adducing evidence.
19. Hence on a conspectus evaluation of all legal and factual B
aspects involved in the application, this court decides that
there is no merit in the contention that the charge levelled
against the petitioner is groundless on the face of materials
available on record. Hence this court decides that the
petitioner is not entitled for an order of discharge as prayed
for.” C
15. While rejecting the Crl. M.P. No. 87 of 2014 filed by the
Respondent No. 1 (husband), the Special Judge observed as under:-
“8. Now let us consider the grounds urged by the petitioner
in seriatum. D
I. The Income-Tax returns submitted by the petitioner’s
wife, was not considered by the Investigating Officer in the
proper perspective.
The learned counsel for the petitioner assiduously
argued that through the Income-Tax returns submitted by the E
wife of the petitioner, who is arrayed as 2nd accused in the
main case, it established beyond doubt that the petitioners
wife had sufficient source to acquire properties mentioned in
Statement II but the Investigating Officer in total disregard to
the Income-Tax returns has treated the properties standing in F
the name of the petitioner’s wife as the properties of the
petitioner on the premise that the petitioner has purchased
the properties benami in the name of his wife and as such the
computation made by the Investigating Officer in arriving at
the total value of the assets acquired by the petitioner during
the check period at Rs. 28,23,492/- as set out in Statement V G
is grossly erroneous. As already pointed out the fact that the
petitioner’s wife, the 2nd accused is an Income-Tax assessee
and that she had submitted her Income-Tax returns to the
concerned Income-Tax authorities regularly is not seriously
disputed. The petitioner is making an adroit effort to impress
H
644 SUPREME COURT REPORTS [2022] 7 S.C.R.
A upon the court that particulars set out in the Income-Tax
returns unequivocally establish the financial capabilities of
the wife of the petitioner to purchase properties and hence
the properties standing in the name of the wife of the petitioner
has to be treated as self-acquired properties of the wife of the
petitioner.
B
11. (II). Income derived by the petitioner’s wife through money
lending business not given due consideration.
According to the petitioner, his wife, the 2nd accused by
doing money lending business was deriving size able income
C but the same was not considered by the Investigating Officer
and as such the conclusion arrived at by the Investigating
Officer that the 2 nd accused is an ostensible owner of the
properties standing in her name and that the petitioner is the
true owner of the said properties is absolutely wrong. The
Investigating Officer has categorically mentioned that in
D respect of the so called money lending business no documents
were produced before him either by the petitioner or his wife
during investigation. Even in the present application the
petitioner has not claimed that there are documents to establish
the money lending business carried out by his wife and the
E income derived by her through the said business. The
contentious issue as to whether the petitioner wife was deriving
income by doing money lending business can be decided only
during trial based on the evidence placed in this regard. Hence
this court decides that above contention raised by the
petitioner is pre-matured one and thus cannot be entertained
F at the stage of framing charges. On a conspectus evaluation
of the legal and factual aspects involved in the case, this
court decides that the claim of the petitioner for an order of
discharge alleging that the Investigating Officer has erred in
treating the properties standing in the name of the petitioner’s
G wife as the properties of the petitioner ignoring the separate
income of the petitioner’s wife through money lending business
is not sustainable under law.
12. (III). The methodology adopted by the Investigating
Officer in arriving at the total value of assets standing in the
H
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v. 645
R. SOUNDIRARASU ETC. [J. B. PARDIWALA, J.]
name of the petitioner at the end of the check-period A
erroneous:-
According to the petitioner the income derived by the
petitioner’s wife other than from S.K. Mat Industries during
the relevant period of Rs. 5,90,342/- but the same has not
been considered by the Investigating Officer even though the B
same has been set out in the Income-Tax returns submitted by
the petitioner’s wife, the 2nd accused Suguan. The petitioner
further allege that the properties of the petitioner’s wife and
son more fully described in Statement II ought to have been
excluded but strangely the Investigating Officer has included
the same, which again clearly demonstrate that computation C
has not been made in proper line. Based on the above said
contentions the petitioner challenging the very methodology
adopted by the Investigating Officer, seek an order of
discharge. As elaborately discussed in the earlier part of this
order, the question as to whether the properties standing in D
the name of the petitioner’s wife and son are in reality their
self acquired properties or whether those properties were in
fact acquired by the petitioner through his financial resources
can be decided only at the time of trial based on the evidence
adduced by both parties in this regard. Since the nature of
properties standing in the name of the petitioner’s wife and E
son cannot be decided at this stage, at no stretch of imagination
it can be contended that the methodology adopted by the
Investigating Officer in arriving at the total value of assets
and financial resources standing in the name of the petitioner
at the end of the check period is erroneous. F
13. Hence considering the materials available on record in
the back drop of the principles of law propounded by our
Apex Court in the case of Suresh Rajan referred supra, this
court decides that the petitioner is not entitled for an order of
discharge alleging that the methodology adopted by the G
Investigating Officer is erroneous.
14. In the present case the total value of the assets and
pecuniary resources of the petitioner and his family members
at the end of the check-period has been computed by the
Investigating Officer at Rs.31,69,498/- as set out in Statement H
646 SUPREME COURT REPORTS [2022] 7 S.C.R.
A II. During investigation of the case, the petitioner has not
produced any documents before the Investigating Officer
except the Income-Tax returns of his wife, the 2nd accused, to
trace the source of income of the petitioner’s wife to acquire
the properties standing in her name. Hence the Investigating
Officer proceeded to treat the properties standing in the name
B
of the petitioner’s wife and his son as the properties of the
petitioner, which cannot be found fault at this stage more so
when the petitioner has not disclosed the acquisition of
properties by his wife to the concerned department as required
under the Tamil Nadu Government Servants conduct rules.
C Hence this court, at this stage, decides that there is no
substance in the contention of the petitioner that the
methodology adopted by the Investigating Officer in
computing the value of the assets of the petitioner is erroneous.
15. Conclusion :
D The materials placed by the Investigating Officer along
with the Final Report disclose grave suspecion against the
petitioner of having committed the alleged offence U/s 13 (1)
(e) of the Prevention of Corruption Act. The guilt or otherwise
of the petitioner has to be decided by court by affording an
E opportunity to the prosecution to march in evidence in support
of its case. The materials placed by the Investigating Officer
along with the final report prima facie disclose the existence
of all the essential ingredients constituting the offence U/s 13
(2) r/w 13 (1) (e) of the Prevention of Corruption Act 1988.
Hence this court decides that the petitioner is not entitled for
F an order of discharge.
16. In the result the application is dismissed.”
16. Thus, while rejecting the discharge applications filed by the
respondents herein, the learned Special Judge recorded a categorical
G finding that there was more than a prima facie case against the accused
persons to put them to trial for the alleged offence. The learned Special
Judge recorded a clear finding that the charges levelled against the
accused persons cannot be said to be groundless so as to discharge
them from the prosecution in exercise of powers under Section 239 of
the CrPC.
H
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v. 647
R. SOUNDIRARASU ETC. [J. B. PARDIWALA, J.]
17. The respondents, being dissatisfied with the orders passed by A
the Special Court rejecting their discharge applications, went before the
High Court and challenged the orders by filing Criminal Revision
Application Nos. 702 and 703 of 2016 resply. Both the Revision
Applications came to be heard by the High Court analogously and came
to be allowed by the common impugned judgment and order dated
B
27.04.2017. The respondents herein came to be discharged from the
prosecution. While allowing the Revision Applications, the High Court
held as under :
“41. Taking into consideration all the relevant facts and
circumstances, this Court is of the view that the Investigating
Officer had not considered the explanation submitted by the C
first accused and also not taken into account any assets of
the petitioners/ Al and A2.
42. This Court has also perused the statements of the listed
witnesses along with the impugned orders. As already
discussed in the foregoing paragraphs and as decided in State D
of Maharashtra Vs Wasudeo (AIR 1981 SC 1186 : 19813sec
199) cited supra, the nature and the extent of burden cast on
the accused is well settled and the accused is not bound to
prove his innocence beyond all reasonable doubt. All that he
would do is to bring out a preponderance of probability. In E
so far as this case is concerned, the petitioners have brought
out a preponderance of probability by way of establishing
their case. As enunciated in Explanation to clause (e) of Sub
Section (1) to Section 13, the petitioners have intimated their
income received from lawful source to the income tax
authorities concerned in accordance with the provisions of F
the Income Tax Act, which is applicable for the first accused
being the public servant to intimate his known source of
income and therefore, this Court is of the view that the
prosecution has miserably failed to make out a prima facie
case against the petitioners/ Al and A2. G
43. It is the cardinal principle that the accused is presumed to
be innocent unless proved to be guilty by the prosecution and
the accused is entitled to the benefit of every reasonable doubt.
Thus, giving false information or failing to prove his innocence
is no ground to base conviction of accused and on the H
648 SUPREME COURT REPORTS [2022] 7 S.C.R.
A contrary it offends the very basic principle of criminal
jurisprudence which lays the burden on the prosecution to
prove the offence against the accused.
44. In criminal cases, the guilt should be proved beyond any
reasonable doubt that a reasonable man with ordinary
B prudence can have. There should. be no doubt whether the
accused is guilty or not. If there is slightest doubt, no matter
how small it is, the benefit will go to the accused. In Indian
legal system the provision regarding burden of proof and how
it is to be discharged are grandeurly laid down in Chapter
VII of the Evidence Act, 1872. The rule is that whoever alleges
C a fact must prove it. In a criminal trail it is the prosecution
who alleges that the accused has committed the offence with
requisite mens rea and so the burden lies upon the prosecution
to prove the same.
45. As observed in the preceding paragraphs the accused is
D not bound to prove his innocence beyond all reasonable
doubt. All that he has to do is, to bring out a preponderance
of probability. The phrase ‘preponderance of probability’
appears to have been taken from Charless R.Cooper V
F.W.Slade, (1857-59) 6 HLC 746. The observations made
E therein make it clear that what ‘preponderance of probability’
means is ‘more probable and rational view of the case’, not
necessarily as certain as the pleadings should be.
46. Section 397(1) confers a sort of supervisory power. The
purpose is to rectify miscarriage of justice. The main
F consideration was whether substantial justice was done since
this Section confers the revisional jurisdiction upon both the
Sessions Court as well as the High Court (Criminal). Nobody
can claim it as a matter of right as it confers supervisory
jurisdiction. When there is a clear illegality in the order passed
by the lower Court, a revision could be entertained.
G
47. On coming to the provisions of Section 401 of the Code,
as it is understood, the object behind this Section is to empower
the High Court to exercise the powers of an Appellate Court
to prevent failure of justice in cases where the Code does not
provide for appeal.
H
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v. 649
R. SOUNDIRARASU ETC. [J. B. PARDIWALA, J.]
48. The power, however, is to be exercised only in exceptional A
cases where there has been a miscarriage of justice owing to
:
I
(i) a defect in the procedure or
B
(ii) a manifest error on a point of law;
(iii) excess jurisdiction,
(iv) abuse of power, &
(v) where the decision upon which the trial Court relied has
C
since been reversed or overruled when the revision petition
was being heard.
49. As observed by the Supreme Court in State of M.P. Vs.
S.B.Johari, (AIR 2000 SC 665: (2000) 2 sec 57: 2000 SCC
(Crl) 311 : 2000 Crl.L.J.944), under Section 401 of Criminal
D
Procedure Code quashing of the charge by the High Court
would be justified if even on considering the entire prosecution
evidence, the offence is not made out.
50. Viewing it from any angle, this Court is of considered
opinion that the prosecution has not made out any case as
against the petitioners/ Al and A2 to proceed with. E
51. In the result, Criminal Revision Case Nos. 702 and 703 of
2016 are allowed and the impugned orders, dated 29.03.2016
and made in Crl.M.P.Nos.87 and 86 of 2014 in Special
CC.No.76 of 2014 on the file of the learned Special Judge
(for Corruption Cases), Salem are set aside and the petitions F
in Crl.M.P.Nos.87 and 86 of 2014 in Special CC.No.76 of
2014 are allowed. The petitioners/ Al and A2 are discharged
from the clutches of the charges.”
18. Thus, from the aforesaid, it appears that the High Court thought
fit to discharge both the accused essentially on the following counts. G
a) The Investigating Officer wrongly declined to consider the
explanation offered by the Respondent No. 1 as regards the
allegations and also failed to take into consideration the lawful
assets of the Respondents.
H
650 SUPREME COURT REPORTS [2022] 7 S.C.R.
A b) The accused persons had disclosed their income to the
income tax authorities in accordance with the provisions of the
Income Tax Act and, in such circumstances, no prima facie
case could be said to have been made out against them.
c) The accused in a prosecution under the Act 1988, more
B particularly for the offences punishable under section 13(1)(e)
of the Act, is obliged only to explain as regards the alleged
assets disproportionate to the known sources of his income on
the principle of preponderance of probability.
d) As no prima facie case could be said to have been made
C out against the accused persons, they deserve to be discharged
from the prosecution in exercise of revisional powers meant
for doing substantial justice.
19. In view of the aforesaid, the State being aggrieved and
dissatisfied with the impugned orders passed by the High Court is here
D before this Court with the present appeals.
SUBMISSIONS ON BEHALF OF THE APPELLANT
20. Mr. V. Krishnamurthy, the learned Additional Advocate General
appearing on behalf of the State vehemently submitted that the High
Court committed a serious error in discharging the accused persons from
E the prosecution. He would submit that the whole approach of the High
Court, more particularly the finding that “when the prosecuting agency
has come forward with a specific occasion, that the petitioners have
amassed wealth which is disproportionate to their known source of
income, it is incumbent on the part of the prosecution, to prove the
F indictment with clinching and impeccable evidence beyond all
reasonable doubts, because the allegations made against the
petitioners would definitely affect their private rights and their self-
respect as well” is erroneous and unsustainable.
21. He would submit that the High Court has erroneously cast a
burden on the prosecution to prove the case against the accused persons
G
beyond all reasonable doubt even at the stage of framing charge. The
scope and ambit of inquiry before framing the charge or at the stage of
discharge has been well settled by this Court.
22. He would submit that the High Court grossly erred in taking
into consideration the documents produced by the accused persons in
H
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v. 651
R. SOUNDIRARASU ETC. [J. B. PARDIWALA, J.]
their defence such as the Income Tax Assessments of A2 and other A
records, to come to the conclusion that the properties disclosed therein
ought to be eschewed from consideration. The learned counsel submitted
that the practice of looking into the documents produced by the accused
at the stage of framing of charge has not been approved by this Court in
the case of State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC
B
568.
23. He would submit that the High Court could be said to have
conducted a mini trial while considering the discharge applications filed
by the accused persons. In other words, at the stage of framing of charge,
roving and fishing inquiry is impermissible and that would defect the
object of the Code. C
24. In the last, he submitted that the High Court overlooked the
dictum as laid by this Court in the State of Tamil Nadu by Inspector of
Police, Vigilance and Anti-Corruption vs. N. Suresh Rajan and
others, (2014) 11 SCC 709 @ 721 para 29, wherein this Court held that:
D
“It is trite that at the stage of consideration of an application
for discharge, the court has to proceed with an assumption
that the materials brought on record by the prosecution are
true and evaluate the said materials and documents with a
view to find out whether the facts emerging therefrom taken
at their face value disclose the existence of all the ingredients E
constituting the alleged offence. At this stage, probative value
of the materials has to be gone into and the court is not
expected to go deep into the matter and hold that the materials
would not warrant a conviction. In our opinion, what needs
to be considered is whether there is a ground for presuming F
that the offence has been committed and not whether a ground
for convicting the accused has been made out. To put it
differently, if the court thinks that the accused might have
committed the offence on the basis of the materials on record
on its probative value, it can frame the charge; though for
conviction, the court has to come to the conclusion that the G
accused has committed the offence. The law does not permit
a mini trial at this stage.”
25. In such circumstances referred to above, the learned counsel
appearing for the State prayed that there being merit in his two appeals,
H
652 SUPREME COURT REPORTS [2022] 7 S.C.R.
A those may be allowed and the impugned orders passed by the High
Court may be set aside.
SUBMISSIONS ON BEHALF OF THE ACCUSED
26. Mr. K. Radhakrishnan, the learned senior counsel appearing
for the accused persons, on the other hand, vehemently opposed both
B the appeals submitting that no error, not to speak of any error of law,
could be said to have been committed by the High Court in passing the
impugned orders discharging the accused persons from the prosecution.
27. The learned senior counsel would submit that without
considering the explanation furnished by the respondent No. 1 and without
C calling for any explanation from his wife (second accused), the
chargesheet for the offences punishable under Sections 13(2) r/w 13(1)(e)
of the Act 1988 and Section 109 of the IPC could not have been filed.
The learned counsel, relying on the decision of this Court in the case of
N. Suresh Rajan (supra), submitted as a proposition of law that any
D property in the name of an income tax assessee, by itself, cannot be a
ground to assume that such property belongs to the assessee.
28. He would submit that this Court in N. Suresh Rajan (supra)
was dealing with a factual situation wherein the parents of the accused
to whom the property belonged were not having any independent source
E of income unlike in the facts of the present case where the wife of the
respondent is a commerce graduate and an entrepreneur. She has her
own independent source of income and had purchased the properties
out of her own income and that one of those has been gifted by her
father. She has been an income tax assessee from the year 1990 and
has been regularly filing her income tax returns.
F
29. He would submit that the Investigating Officer failed to
consider the explanation furnished by the Respondent No. 1. Relying on
the decision of this Court in the case of State of Maharashtra vs.
Wasudeo Ramchandra Kaidalwar, (1981) 3 SCC 199, the learned
counsel submitted that the nature and extent of burden cast on the
G accused is not to prove his innocence beyond reasonable doubt. All that
the accused is obliged in law is to explain on preponderance of probability.
In so far as the present case is concerned, the respondents have brought
out a preponderance of probability by way of establishing their case.
30. The learned counsel in his written submissions has stated as
H under:-
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v. 653
R. SOUNDIRARASU ETC. [J. B. PARDIWALA, J.]
i. “In determining the assets of the respondent, the assets A
standing in the name of his wife and their son must be
eschewed.
ii. Income of Tmt. Suguna, wife of the respondent R.
Soundirarasu could not be clubbed along with the
income of her husband when she is particularly having B
independent source of income and pays income tax.
iii. Further, the investigating Officer has called for the
explanation from the respondent R. Soundirarasu, which
was not considered by the IO.
iv. However, the IO has not called for the explanation from C
Tmt. Suguna. This approach of the IO is contrary to the
law laid down by this Hon’ble Court. This Hon’ble Court
in the case of Devine Retreat Centra Vs. State of Kerala
(2008) 3SCC 542, has held that no judicial order can
ever be passed by any court without providing a D
reasonable opportunity of being heard to the person
likely to be affected by such order and particularly
when such order results drastic consequences of
affecting one’s own reputation.
v. Respondent-R. Soundirarasu in his explanation had E
explained that his wife Tmt. Suguna has independent
source of income. She is a commerce graduate and was
a partner in a S.K. Matt Industries along with one R.
Kumar with effect from 23.10.1993. The partnership
was dissolved on 31.3.2003 and thereafter she continued
as the sole proprietor. She had been paying income tax F
from 1990 onwards and her IT returns were scrutinized
by the appropriate authorities. She had been regularly
filed her income tax returns even beyond the end of the
check period.
vi. It is respectfully submitted that the Investigating Officer G
while collecting necessary details from both the income
tax authority as well as the respondent R. Soundirarasu,
had failed to consider them in proper perspective which
do establish that his wife Tmt. Suguna had acquired
properties from her own income. But the investigating
H
654 SUPREME COURT REPORTS [2022] 7 S.C.R.
A officer has erroneously stated in the final report that
she had no source of income and that her father also
did not possess any means to acquire property.
15. It is submitted that Statement No. 1 appended to the
letter dated 16.10.2007 and the Charge Sheet is the
B assets and pecuniary resources that stood to the credit
of respondent and his family members. The check
period, as per the prosecution has been determined from
1.1.2002 to 31.3.2004. In statement No. 1, 14 items have
been shown. In so far as Statement I is concerned,
properties mentioned at item Nos, 01,02,08,10,12 and
C 14 are exclusively the investments of his wife out of her
own resources.
16. It is submitted that in so far as Statement II is
concerned.
D i. Item 1, the house was constructed at the cost of Rs.
4,15,344/- by respondent’s wife Tmt. S. Suguna from
her independent resources derived from S.K. Mat
Industries and other income and LIC Finance Housing
Loan.
E ii. Item No. 2 was purchased by respondent’s wife out of
her independent income derived from S.K. Mat
Industries.
iii. Item no. 12, the Land measuring 0.67.½ cents comprised
in Survey No. 12/1Q situated at M. Chettipatti, Omalur
F Taluk, Salem District was inherited by respondent’s
mother Krishnammal and subsequently settled this
property in favour of her three sons and thereby he
had received 1/3rd share.
iv. Item No. 13 was purchased by respondent’s father-in-
law Thiru. T. Duraisamy with his own resources and
G
later gifted by way of dhana settlement to his son Thiru.
S.S.Saran Kumar on 16.02.2004. This property should
be taken into account as a gift and the value thereof
should not have been included in the Statement.
v. Item No. 14, was inherited by respondent’s wife Tmt.
H S.Suguna by virtue of Dhana settlement.
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v. 655
R. SOUNDIRARASU ETC. [J. B. PARDIWALA, J.]
vi. Item No. 15 was purchased by respondent’s mother-in- A
law Tmt. D. Shantha out of her own funds in the name
of his son and that neither he nor his wife had invested
any money in this transaction.
vii. Item Nos. 17, 18, were purchased by respondent’s wife
Tmt. S. Suguna out of her own resources. B
viii. Items 19, 21 are related to respondent’s wife Tmt. S.
Suguna and the same cannot be attributed to the
respondent.
17. It is submitted that items 2, 3, 4, 5 of Schedule III
pertains to respondent’s wife Tmt. S. Suguna and the C
same cannot be attributed to the respondent.
18. It is submitted that in respect of Statement IV,
i. Item No. 2, the expenditure towards repayment of LIC
housing loan to the extent of Rs. 1,19,934.30 cannot D
be shown towards respondent’s expenditure as the loan
was availed and repaid by his wife Tmt. S. Suguna out
of her own resources.
ii. Similarly, the expenditure being Rs. 1,80,000/- shown
under item No. 3 should not have been shown in
E
respondent’s account, since the loan was obtained by
his wife independently and repaid so far with interest
by her, out of her own resources.
iii. Item No. 5, Telephone charges of Rs. 26,854/- were paid
by respondent’s wife out of her own resources.
F
iv. Item No. 10, the house tax was paid by respondent’s
wife out of her own resources.
v. Item No. 09, the transaction pertains to respondent’s
wife. Therefore, the loss should not have been shown in
respondent’s account. G
vi. Item No. 11 is subscription towards Sri Ram Chits was
made by respondent’s wife out of her own resources.
vii. Item No. 12 the house tax for the house at Ganapathy
is paid by respondent’s wife out of her own resources.
H
656 SUPREME COURT REPORTS [2022] 7 S.C.R.
A viii. Item No. 14, the income tax paid by his respondent’s
wife out of her own resources has been shown in his
account.
19. It is submitted that the calculation made by the
petitioner is incorrect. It is submitted that the correct
B computation as has been explained by the respondent
in his explanation is as follows,
i. The value of assets that stood to respondent’s credit as
well as to the credit of his family members at the
beginning of the check period is Rs. 1,31,254/-.
C ii. The value of the assets that stood to respondent’s credit
as well as to the credit of his family members at the end
of the check period is Rs. 1,37,430/-
iii. Therefore, the value of assets acquired during the check
period is Rs. 6,176/-.
D
iv. Income derived by him and his family members during
the check period is Rs. 3,11,547/-.
v. Expenditure during the check period is Rs. 1,91,910/-.
vi. Thus, the savings during the check period is Rs.
E 1,19,636.80
Therefore, it is submitted that the assets acquired by the
respondent (R. Soundirarasu) are not disproportionate to his
known source of income.
20. It is submitted that in his explanation respondent (R.
F Soundirarasu), has referred to the provisions of the Tamil
Nadu Government Servant Conduct Rules 1973 as amended
up to September 2006, Rules 7 (1) (a), which reads as follows:
(1)(a) No Government servant, shall except after notice to
the prescribed authority, acquire or dispose of any immovable
G property by lease, mortgage, purchase, sale, gift, exchange
or otherwise either in his own name or in the name of any
member of his family.
Such a notice will be necessary even where any immovable
property is acquired by any member of the family of the
H
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v. 657
R. SOUNDIRARASU ETC. [J. B. PARDIWALA, J.]
Government servant out of the resources of the Government A
servant:
Provided that the previous sanction of the prescribed authority
shall not be necessary for the acquisition of immovable
property in respect of house-site assigned by the Government
in favour of the Government servant. B
Explanation-A Government servant is not required to give
notice to the prescribed authority or seek prior permission
from the prescribed authority for acquisition or disposal of
immovable properties by the members of his family under
clause (a), if the immovable property in question is not C
acquired from the resources of the Government servant
concerned.
The IO ought to have considered this provision before taking
the properties and other resources into account.
21. It is respectfully submitted that the High Court has decided D
the matter by following the principles of law laid down by
this Hon’ble Court. The High Court has only looked at the
materials relied upon in the chargesheet to ascertain whether
a prima facie case is made out or not. It is submitted that the
High Court has rightly arrived at the conclusion that the E
prosecution has not examined the materials and the
explanation afforded by the respondent. After examining the
facts emerging from of the materials brought on record by the
prosecution, the High Court has concluded that prima facie
the materials on record does not disclose the existence of all
the ingredients constituting the offences alleged against the F
respondents. The High Court has rightly concluded that the
evidences tagged along with the final report are also not in
consonance with the accusation made in the final report. The
High Court has rendered the judgment discharging the
accused to avert miscarriage of justice and to erase the G
prejudice caused to the accused at the instance of the
investigating officer by not examining the explanation
rendered by the first accused in proper perspective and without
calling for the explanation from the second accused.
Prejudice is also caused by the finding of the Special judge
H
658 SUPREME COURT REPORTS [2022] 7 S.C.R.
A to the effect that there are no materials/ evidence to prove
that the second accused has separate and independent source
of income.”
(Emphasis supplied)
In such circumstances referred to above, the learned counsel
B prayed that there being no merit in the two appeals filed by the State,
those may be dismissed.
31. If we have to give a fair idea as regards the case put up by the
Prosecution against the accused persons, we may do so as under:-
C (a) There are 14 items shown in the Statement No. 1, i.e. Assets
and pecuniary sources that stood to the credit of the accused
and his family members at the beginning of the check period
i.e., 01.01.2002 such as lands, house sites, shares, jewels
and other movables valued at Rs.3,46,006-00.
D (b) There are 21 items shown in the Statement No. II i.e., assets
and pecuniary source that stood to the credit of the accused
and his family members at the end of the check period as
on 31.03.2004, valued at Rs. 31,69,498-00.
(c) There are 6 items shown in the Statement No. III as income
derived by the accused and his family members during the
E
check period i.e., 01-01-2002 to 31-03-2004, calculated at
Rs. 9,97,888-00.
(d) There are 15 items shown in the Statement No. IV i.e.,
expenditure incurred by the accused and his family members
during the check period from 01-01-2002 to 31-03-2004 as
F
family consumption expenditure, education, electricity
charges, housing loan, LIC premiums, telephone charges
etc. is calculated at Rs. 6,16,376-50.
(e) The value of assets acquired by the accused and his family
members at the end of the check period i.e., 31-03-2004 as
G shown in Statement No. V is at Rs. 28,23,492-00 (i.e. Rs.
31,69,498 (-) Rs. 3,46,006-00).
(f) The likely savings of the accused and his family members
during the check period as shown in Statement No. VI is
arrived at Rs. 3,81,512-00 (i.e.,) Rs. 9,97,888-00 (-) Rs.
H 6,16,376-50).
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v. 659
R. SOUNDIRARASU ETC. [J. B. PARDIWALA, J.]
(g) The value of disproportionate assets acquired by the accused A
and his family members as shown in the Statement No. VII
is calculated at Rs. 24,41,980-00.
(h) The percentage of disproportionate assets acquired by the
accused and his family members to the known sources of
their income is calculated at 244.71% (Rs.24,41,980-00 B
divided by Rs.9,97,888-00 multiplied by 100).
Thus, in view of the aforesaid, the case of the prosecution is that
the accused No. 1 (public servant) was found to be in possession of
assets disproportionate to the known sources of his income to the extent
to Rs. 24,41,980/- as on 31.03.2004. C
ANALYSIS
32. Having heard the learned counsel appearing for the parties
and having gone through the materials on record, the only question that
falls for our consideration is whether the High Court committed any
error in discharging both the accused from the charges levelled against D
them?
33. We have no hesitation in observing that the impugned orders
passed by the High Court are utterly incomprehensible. We shall explain
in details why we say so.
E
PREVENTION OF CORRUPTION ACT, 1988
34. Section 13(1)(e) of the Act 1988 including explanation thereto
reads as under :-
“13. Criminal misconduct by a public servant.
(1) A public servant is said to commit the offence of criminal F
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 public servant cannot satisfactorily account,
of pecuniary resources or property disproportionate to his G
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
H
660 SUPREME COURT REPORTS [2022] 7 S.C.R.
A with the provisions of any law, rules or orders for the time
being applicable to a public servant.”
35. The explanation to Section 13(1)(e) defines the expression
“known sources of income” and states that this expression means the
income received from any lawful source and also requires that the receipt
B should have been intimated by the public servant in accordance with any
provisions of law, rules or orders for the time being applicable to a public
servant. This explanation was not there in the Prevention of Corruption
Act, 1947 (for short, “Act 1947”). Noticing this fact in Jagan M. Seshadri
v. State of Tamil Nadu, (2002) 9 SCC 639, this Court has observed as
under:-
C
“7. A bare reading of Section 30(2) of the 1988 Act shows
that any act done or any action taken or purported to have
been done or taken under or in pursuance of the repealed
Act, shall, insofar as it is not inconsistent with the provisions
of this Act, be deemed to have been done or taken under or
D in pursuance of the corresponding provisions of the Act. It
does not substitute Section 13 in place of Section 5 of the 1947
Act. Section 30(2) is applicable “without prejudice to the
application of Section 6 of the General Clauses Act, 1897”.
In our opinion, the application of Section 13 of the 1988 Act
E to the fact situation of the present case would offend Section
6 of the General Clauses Act, which, inter alia provides that
repeal shall not (i) affect the previous operation of any
enactment so repealed or anything duly done or suffered
thereunder, or (ii) affect any investigation, legal proceedings
or remedy in respect of any such rights, privilege, obligation,
F penalty, forfeiture or punishment. Section 13, both in the
matter of punishment as also by the addition of the Explanation
to Section 13(1)(e) is materially different from Section 5 of the
1947 Act. The presumption permitted to be raised under the
Explanation to Section 13(1)(e) was not available to be raised
G under Section 5(1)(e) of the 1947 Act. This difference can
have a material bearing on the case.”
36. The explanation to Section 13(1)(e) of the Act 1988 has the
effect of defining the expression “known sources of income” used
in Section 13(1)(e) of the Act 1988. The explanation to Section
H 13(1)(e) of the Act 1988 consists of two parts. The first part states that
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v. 661
R. SOUNDIRARASU ETC. [J. B. PARDIWALA, J.]
the known sources of income means the income received from any A
lawful source and the second part states that such receipt should have
been intimated by the public servant in accordance with the provisions
of law, rules and orders for the time being applicable to a public servant.
37. Referring to the first part of the expression “known sources
of income” in N. Ramakrishnaiah v. State of A.P., 2009 Crl.L.J. 1767, B
this Court observed as under:
“15. The emphasis of the phrase “known sources of income”
in Section 13(1)(e) (old Section 5(1)(e)) is clearly on the word
“income”. It would be primary to observe that qua the public
servant, the income would be what is attached to his office or C
post, commonly known as remuneration or salary. The term
“income” by itself, is classic and has a wide connotation.
Whatever comes in or is received is income. But, however,
wide the import and connotation of the term “income”, it is
incapable of being understood as meaning receipt having no
nexus to one’s labour, or expertise, or property, or investment, D
and being further a source which may or may not yield a
regular revenue. These essential characteristics are vital in
understanding the term “Income”. Therefore, it can be said
that, though “income” in receipt in the hand of its recipient,
every receipt would not partake into the character of income. E
For the public servant, whatever return he gets of his service,
will be the primary item of his income. Other income which
can conceivably be income qua the public servant will be in
the regular receipt from (a) his property, or (b) his investment.
A receipt from windfall, or gains of graft crime or immoral
secretions by persons prima facie would not be receipt for F
the “known source of income” of a public servant.”
38. The above brings us to the second part of the explanation,
defining the expression “such receipt should have been intimated by the
public Servant” i.e. intimation by the public servant in accordance with
any provisions of law, rules or orders applicable to a public servant. G
39. The language of the substantive provisions of Section 5(3) of
the Act 1947 before its amendment, Section 5 (1)(e) of the Act 1947 and
13(1)(e) of the Act 1988 continues to be the same though Section 5(3)
before it came to be amended was held to be a procedural Section in the
H
662 SUPREME COURT REPORTS [2022] 7 S.C.R.
A case of Sajjan Singh v. State of Punjab, AIR 1964 SC 464. Section
5(3) of the Act 1947 before it came to be amended w.e.f. 18th December,
1964 was interpreted in the case of C.D.S. Swami v. State, AIR 1960
SC 7, and it was observed:-
“5. Reference was also made to cases in which courts had
B held that if plausible explanation had been offered by an
accused person for being in possession of property which
was the subject-matter of the charge, the court could
exonerate the accused from criminal responsibility for
possessing incriminating property. In our opinion, those cases
have no bearing upon the charge against the appellant in
C this case, because the section requires the accused person to
“satisfactorily account” for the possession of pecuniary
resources or property disproportionate to his known sources
of income. Ordinarily, an accused person is entitled to
acquittal if he can account for honest possession of property
D which has been proved to have been recently stolen (see
illustration (a) to Section 114 of the Indian Evidence Act,
1872). The rule of law is that if there is a prima facie
explanation of the accused that he came by the stolen goods
in an honest way, the inference of guilty knowledge is
displaced. This is based upon the well- established principle
E that if there is a doubt in the mind of the court as to a necessary
ingredient of an offence, the benefit of that doubt must go to
the accused. But the legislature has advisedly used the
expression “satisfactorily account”. The emphasis must be
on the word “satisfactorily”, and the legislature has, thus,
F deliberately cast a burden on the accused not only to offer a
plausible explanation as to how he came by his large wealth,
but also to satisfy the court that his explanation was worthy
of acceptance.
6. Another argument bearing on the same aspect of the case,
G is that the prosecution has not led evidence to show as to
what are the known sources of the appellant’s income. In this
connection, our attention was invited to the evidence of the
investigating officers, and with reference to that evidence, it
was contended that those officers have not said, in terms, as
to what were the known sources of income of the accused, or
H
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v. 663
R. SOUNDIRARASU ETC. [J. B. PARDIWALA, J.]
that the salary was the only source of his income. Now, the A
expression “known sources of income” must have reference
to sources known to the prosecution on a thorough
investigation of the case. It was not, and it could not be,
contended that “known sources of income” means sources
known to the accused. The prosecution cannot, in the very
B
nature of things, be expected to know the affairs of an
accused person. Those will be matters “specially within the
knowledge” of the accused, within the meaning of Section
106 of the Evidence Act. The prosecution can only lead
evidence, as it has done in the instant case, to show that the
accused was known to earn his living by service under the C
Government during the material period. The prosecution
would not be justified in concluding that travelling allowance
was also a source of income when such allowance is
ordinarily meant to compensate an officer concerned for his
out-of-pocket expenses incidental to journeys performed by
D
him for his official tours. That could not possibly be alleged
to be a very substantial source of income. The source of
income of a particular individual will depend upon his position
in life with particular reference to his occupation or avocation
in life. In the case of a government servant, the prosecution
would, naturally, infer that his known source of income would E
be the salary earned by him during his active service. His
pension or his provident fund would come into calculation
only after his retirement, unless he had a justification for
borrowing from his provident fund. We are not, therefore,
impressed by the argument that the prosecution has failed to
F
lead proper evidence as to the appellant’s known sources of
income. It may be that the accused may have made statements
to the investigating officers as to his alleged sources of
income, but the same, strictly, would not be evidence in the
case, and if the prosecution has failed to disclose all the
sources of income of an accused person, it is always open to G
him to prove those other sources of income which have not
been taken into account or brought into evidence by the
prosecution.”
(Emphasis supplied)
H
664 SUPREME COURT REPORTS [2022] 7 S.C.R.
A 40. Even after Section 5(3) was deleted and Section 5(1)(e) was
enacted, this Court in the case of Wasudeo Ram Chandra Kaidalwar
(supra) has observed that the expression “known sources of income”
occurring in Section 5(1)(e) has a definite legal connotation which in the
context must mean the sources known to the prosecution and not sources
relied upon and known to the accused. Section 5(1)(e), it was observed
B
by this Court, casts a burden on the accused for it uses the words “for
which the public servant cannot satisfactorily account”. The onus is on
the accused to account for and satisfactorily explain the assets.
Accordingly, in Wasudeo Ram Chandra Kaidalwar (supra) it was
observed:-
C “11. The provisions of Section 5(3) have been subject of
judicial interpretation. First the expression “known sources
of income” in the context of Section 5(3) meant “sources
known to the prosecution”. The other principle is equally well-
settled. The onus placed on the accused under Section
D 5(3) was, however, not to prove his innocence beyond
reasonable doubt, but only to establish a preponderance of
probability. These are the well-settled principles: see C.S.D.
Swamy v. State; Sajjan Singh v. State of Punjab and V.D.
Jhingan v. State of U.P. The legislature thought it fit to
dispense with the rule of evidence under Section 5(3) and
E make the possession of disproportionate assets by a public
servant as one of the species of the offence of criminal
misconduct by inserting Section 5(1)(e) due to widespread
corruption in public services.
12. The terms and expressions appearing in Section 5(1)(e) of
F the Act are the same as those used in the old Section 5(3).
Although the two provisions operate in two different fields,
the meaning to be assigned to them must be the same. The
expression “known sources of incomes” means “sources
known to the prosecution”. So also, the same meaning must
G be given to the words “for which the public servant cannot
satisfactorily account” occurring in Section 5(1)(e). No
doubt, Section 4(1) provides for presumption of guilt in cases
falling under Section 5(1)(a) and (b), but there was, in our
opinion, no need to mention Section 5(1)(e) therein. For, the
reason is obvious. The provision contained in Section
H
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v. 665
R. SOUNDIRARASU ETC. [J. B. PARDIWALA, J.]
5(1)(e) of the Act is a self-contained provision. The first part A
of the section casts a burden on the prosecution and the
second on the accused. When Section 5(1)(e) uses the words
“for which the public servant cannot satisfactorily account”,
it is implied that the burden is on such public servant to
account for the sources for the acquisition of disproportionate
B
assets. The High Court, therefore, was in error in holding
that a public servant charged for having disproportionate
assets in his possession for which he cannot satisfactorily
account, cannot be convicted of an offence under Section
5(2) read with Section 5(1)(e) of the Act unless the prosecution
disproves all possible sources of income. C
13. That takes us to the difficult question as to the nature and
extent of the burden of proof under Section 5(1)(e) of the Act.
The expression “burden of proof” has two distinct meanings
(1) the legal burden i.e. the burden of establishing the guilt,
and (2) the evidential burden i.e. the burden of leading D
evidence. In a criminal trial, the burden of proving everything
essential to establish the charge against the accused lies upon
the prosecution, and that burden never shifts. Notwithstanding
the general rule that the burden of proof lies exclusively upon
the prosecution, in the case of certain offences, the burden
of proving a particular fact in issue may be laid by law upon E
the accused. The burden resting on the accused in such cases
is, however, not so onerous as that which lies on the
prosecution and is discharged by proof of a balance of
probabilities. The ingredients of the offence of criminal
misconduct under Section 5(2) read with Section 5(1)(e) are F
the possession of pecuniary resources or property
disproportionate to the known sources of income for which
the public servant cannot satisfactorily account. To
substantiate the charge, the prosecution must prove the
following facts before it can bring a case under Section
5(1)(e), namely, (1) it must establish that the accused is a G
public servant, (2) the nature and extent of the pecuniary
resources or property which were found in his possession,
(3) it must be proved as to what were his known sources of
income i.e. known to the prosecution, and (4) it must prove,
quite objectively, that such resources or property found in H
666 SUPREME COURT REPORTS [2022] 7 S.C.R.
A possession of the accused were disproportionate to his known
sources of income. Once these four ingredients are established,
the offence of criminal misconduct under Section 5(1)(e) is
complete, unless the accused is able to account for such
resources or property. The burden then shifts to the accused
to satisfactorily account for his possession of disproportionate
B
assets. The extent and nature of burden of proof resting upon
the public servant to be found in possession of
disproportionate assets under Section 5(1)(e) cannot be
higher than the test laid by the Court in Jhingan case i.e. to
establish his case by a preponderance of probability. That
C test was laid down by the court following the dictum of Viscount
Sankey, L.C., in Woolmington v. Director of Public Prosecution.
The High Court has placed an impossible burden on the
prosecution to disprove all possible sources of income which
were within the special knowledge of the accused. As laid
down in Swamy case, the prosecution cannot, in the very nature
D
of things, be expected to know the affairs of a public
servant found in possession of resources or property
disproportionate to his known sources of income i.e. his
salary. Those will be matters specially within the knowledge
of the public servant within the meaning of Section 106 of
E the Evidence Act, 1872. Section 106 reads:
“When any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him.”
In this connection, the phrase the burden of proof is clearly
used in the secondary sense namely, the duty of introducing
F evidence. The nature and extent of the burden cast on the
accused is well settled. The accused is not bound to prove his
innocence beyond all the reasonable doubt. All that he need
to do is to bring out a preponderance of probability.”
41. While the expression “known sources of income” refers to
G the sources known to the prosecution, the expression “for which the
public servant cannot satisfactorily account” refers to the onus or burden
on the accused to satisfactorily explain and account for the assets found
to be possessed by the public servant. This burden is on the accused as
the said facts are within his special knowledge. Section 106 of the
H Evidence act applies. The explanation to Section 13(1)(e) is a procedural
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v. 667
R. SOUNDIRARASU ETC. [J. B. PARDIWALA, J.]
Section which seeks to define the expression “known sources of income” A
as sources known to the prosecution and not to the accused. The
explanation applies and relates to the mode and manner of investigation
to be conducted by the prosecution, it does away with the requirement
and necessity of the prosecution to have an open, wide and rowing
investigation and enquire into the alleged sources of income which the
B
accused may have. It curtails the need and necessity of the prosecution
to go into the alleged sources of income which a public servant may or
possibly have but are not legal or have not been declared. The undeclared
alleged sources are by their very nature are expected to be known to
the accused only and are within his special knowledge. The effect of
the explanation is to clarify and reinforce the existing position and C
understanding of the expression “known sources of income” i.e. the
expression refers to sources known to the prosecution and not sources
known to the accused. The second part of the explanation does away
with the need and requirement for the prosecution to conduct an open
ended or rowing enquiry or investigation to find out all alleged/claimed
D
known sources of income of an accused who is investigated under the PC
Act, 1988. The prosecution can rely upon the information furnished by
the accused to the authorities under law, rules and orders for the time
being applicable to a public servant. No further investigation is required
by the prosecution to find out the known sources of income of the accused
public servant. As noticed above, the first part of the explanation refers E
to income received from legal/lawful sources. This first part of the
expression states the obvious as is clear from the judgment of this Court
in N. Ramakrishnaiah (supra). (Emphasis supplied)
42. Thus, it is evident from the aforesaid that the expression
“known source of income” is not synonymous with the words “for which F
the public servant cannot satisfactorily account.” The two expressions
connote and have different meaning, scope and requirements.
43. In the case of Central Bureau of Investigation (CBI) and
Anr. v. Thommandru Hannah Vijayalakshmi @ T.H. Vijayalakshmi
and Anr., reported in 2021 SCC OnLine SC 923, this Court, after an G
exhaustive review of its various other decisions, more particularly the
decision in the case of K. Veeraswami v. Union of India, (1991) 3 SCC
655, held that since the accused public servant does not have a right to
be afforded a chance to explain the alleged Disproportionate Assets to
the investigating officer before the filing of a chargesheet, a similar right
H
668 SUPREME COURT REPORTS [2022] 7 S.C.R.
A cannot be granted to the accused before the filing of an FIR by making
a preliminary inquiry mandatory.
44. The above decision of this Court in the case of Thommandru
Hannah Vijayalakshmi @ T.H. Vijayalakshmi (supra) is a direct
answer to the contention raised on behalf of the accused persons that
B the investigating officer wrongly declined to consider the explanation
offered by the public servant in regard to the allegations and also failed
to take into consideration the assets lawfully acquired by his wife.
45. In K. Veeraswami (supra), this Court held thus:-
“75…since the legality of the charge-sheet has been
C impeached, we will deal with that contention also. Counsel
laid great emphasis on the expression ¯for which he cannot
satisfactorily account ¯ used in clause (e) of Section 5(1) of
the Act. He argued that that term means that the public servant
is entitled to an opportunity before the Investigating Officer
D to explain the alleged disproportionality between assets and
the known sources of income. The Investigating Officer is
required to consider his explanation and the charge-sheet
filed by him must contain such averment. The failure to mention
that requirement would vitiate the charge-sheet and renders
it invalid. This submission, if we may say so, completely
E overlooks the powers of the Investigating Officer. The
Investigating Officer is only required to collect material to
find out whether the offence alleged appears to have been
committed. In the course of the investigation, he may examine
the accused. He may seek his clarification and if necessary,
F he may cross check with him about his known sources of
income and assets possessed by him. Indeed, fair investigation
requires as rightly stated by Mr. A.D. Giri, learned Solicitor
General, that the accused should not be kept in darkness. He
should be taken into confidence if he is willing to cooperate.
But to state that after collection of all material the Investigating
G Officer must give an opportunity to the accused and call upon
him to account for the excess of the assets over the known
sources of income and then decide whether the accounting is
satisfactory or not, would be elevating the Investigating
Officer to the position of an enquiry officer or a judge. The
H Investigating Officer is not holding an enquiry against the
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v. 669
R. SOUNDIRARASU ETC. [J. B. PARDIWALA, J.]
conduct of the public servant or determining the disputed A
issues regarding the disproportionality between the assets and
the income of the accused. He just collects material from all
sides and prepares a report which he files in the court as
charge-sheet.”
(Emphasis supplied) B
46. The second contention canvassed on behalf of the accused
persons that every bit of information in regard to the assets had been
intimated to the Income Tax Authorities and the documents in regard to
the same should be sufficient to exonerate the accused persons from
the charges is without any merit. In other words, the contention that the C
High Court rightly took into consideration the aforesaid for the purpose
of discharging the accused persons from the prosecution is without any
merit and erroneous more particularly in view of the decision of this
Court in the case of Thommandru Hannah Vijayalakshmi @ T.H.
Vijayalakshmi (supra). This Court has observed in paras 58, 60 & 61
resply as under:- D
“58. On the other hand, it has been argued on behalf of the
appellant that the documents relied upon by the respondents
are not unimpeachable and have to be proved at the stage of
trial. Hence, it was urged that the arguments made on the
basis of these documents should not be accepted by this Court. E
The appellant has relied upon the judgment of a two Judge
Bench of this Court in J. Jayalalitha (supra), where it has
been held that documents such as Income Tax Returns cannot
be relied upon as conclusive proof to show that the income is
from a lawful source under the PC Act. Justice P C Ghose F
held thus:
“191. Though considerable exchanges had been made in
course of the arguments, centering around Section 43 of the
Evidence Act, 1872, we are of the comprehension that those
need not be expatiated in details. Suffice it to state that even G
assuming that the income tax returns, the proceedings in
connection therewith and the decisions rendered therein are
relevant and admissible in evidence as well, nothing as such,
turns thereon definitively as those do not furnish any
guarantee or authentication of the lawfulness of the source(s)
H
670 SUPREME COURT REPORTS [2022] 7 S.C.R.
A of income, the pith of the charge levelled against the
respondents. It is the plea of the defence that the income tax
returns and orders, while proved by the accused persons had
not been objected to by the prosecution and further it
(prosecution) as well had called in evidence the income tax
returns/orders and thus, it cannot object to the admissibility
B
of the records produced by the defence. To reiterate, even if
such returns and orders are admissible, the probative value
would depend on the nature of the information furnished, the
findings recorded in the orders and having a bearing on the
charge levelled. In any view of the matter, however, such
C returns and orders would not ipso facto either conclusively
prove or disprove the charge and can at best be pieces of
evidence which have to be evaluated along with the other
materials on record. Noticeably, none of the respondents has
been examined on oath in the case in hand. Further, the income
tax returns relied upon by the defence as well as the orders
D
passed in the proceedings pertaining thereto have been filed/
passed after the chargesheet had been submitted.
Significantly, there is a charge of conspiracy and abetment
against the accused persons. In the overall perspective
therefore neither the income tax returns nor the orders passed
E in the proceedings relatable thereto, either definitively attest
the lawfulness of the sources of income of the accused persons
or are of any avail to them to satisfactorily account the
disproportionateness of their pecuniary resources and
properties as mandated by Section 13(1)(e) of the Act. In
Vishwanath Chaturvedi (3) v. Union of India [Vishwanath
F
Chaturvedi (3) v. Union of India, (2007) 4 SCC 380 : (2007)
2 SCC (Cri) 302] , a writ petition was filed under Article 32
of the Constitution of India seeking an appropriate writ for
directing the Union of India to take appropriate action to
prosecute R-2 to R-5 under the 1988 Act for having amassed
G assets disproportionate to the known sources of income by
misusing their power and authority. The respondents were the
then sitting Chief Minister of U.P. and his relatives. Having
noticed that the basic issue was with regard to alleged
investments and sources of such investments, Respondents 2
to 5 were ordered by this Court to file copies of income tax
H
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v. 671
R. SOUNDIRARASU ETC. [J. B. PARDIWALA, J.]
and wealth tax returns of the relevant assessment years which A
was done. It was pointed out on behalf of the petitioner that
the net assets of the family though were Rs 9,22,72,000, as
per the calculation made by the official valuer, the then value
of the net assets came to be Rs 24 crores. It was pleaded on
behalf of the respondents that income tax returns had already
B
been filed and the matters were pending before the authorities
concerned and all the payments were made by cheques, and
thus the allegation levelled against them were baseless. It was
observed that the minuteness of the details furnished by the
parties and the income tax returns and assessment orders,
sale deeds, etc. were necessary to be carefully looked into C
and analyzed only by an independent agency with the
assistance of chartered accountants and other accredited
engineers and valuers of the property. It was observed that
the Income Tax Department was concerned only with the
source of income and whether the tax was paid or not and,
D
therefore, only an independent agency or CBI could, on court
direction, determine the question of disproportionate assets.
CBI was thus directed to conduct a preliminary enquiry into
the assets of all the respondents and to take further action in
the matter after scrutinizing as to whether a case was made
out or not. This decision is to emphasize that submission of E
income tax returns and the assessments orders passed thereon,
would not constitute a foolproof defence against a charge of
acquisition of assets disproportionate to the known lawful
sources of income as contemplated under the PC Act and that
further scrutiny/analysis thereof is imperative to determine
F
as to whether the offence as contemplated by the PC Act is
made out or not.
x x x x x
60. At the very outset, we must categorically hold that the
documents which have been relied upon by the respondents G
cannot form the basis of quashing the FIR. The value and
weight to be ascribed to the documents is a matter of trial.
Both the parties have cited previous decisions of two Judge
Benches of this Court in order to support their submissions.
There is no clash between the decisions in Kedari Lal (supra)
H
672 SUPREME COURT REPORTS [2022] 7 S.C.R.
A and J. Jayalalitha (supra) for two reasons: (i) the judgment
in J. Jayalalitha (supra) notes that a document like the Income
Tax Return, by itself, would not be definitive evidence in
providing if the —source of one‘s income was lawful since
the Income Tax Department is not responsible for investigating
that, while the facts in the judgment in Kedari Lal (supra)
B
were such that the —source of the income was not in question
at all and hence, the Income Tax Returns were relied upon
conclusively; and (ii) in any case, the decision in Kedari Lal
(supra) was delivered while considering a criminal appeal
challenging a conviction under the PC Act, while the present
C matter is at the stage of quashing of an FIR.
61. In the present case, the appellant is challenging the very
—source of the respondents‘ income and the questioning the
assets acquired by them based on such income. Hence, at the
stage of quashing of an FIR where the Court only has to
D ascertain whether the FIR prima facie makes out the
commission of a cognizable offence, reliance on the documents
produced by the respondents to quash the FIR would be
contrary to fundamental principles of law. The High Court
has gone far beyond the ambit of its jurisdiction by virtually
conducting a trial in an effort to absolve the respondents.”
E
(Emphasis supplied)
47. Now, the reason why we say that the impugned orders passed
by the High Court are utterly incomprehensible is because the High
Court has not been able to comprehend the true scope and ambit of
F Section 239 of the CrPC. The High Court has also not been able to
comprehend in what set of circumstances the revisional powers under
Section 397 read with Section 401 of the CrPC are to be exercised.
48. We have gathered an impression that the High Court seems
to be labouring under a serious mis-conception of law as is evident from
G the two impugned orders and such erroneous mis-conceptions need to
be eradicated.
49. The learned counsel appearing for the State rightly submitted
that at the stage of consideration of discharge under Section 239 of the
CrPC only a prima facie case is to be seen and the Special Court having
recorded a satisfaction with regard to the existence of a prima facie
H
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v. 673
R. SOUNDIRARASU ETC. [J. B. PARDIWALA, J.]
case there cannot be said to be any material error or illegality in the A
orders assailed before the High Court.
50. The procedure for trial of warrant cases by Magistrate is
provided for under Chapter XIX of the CrPC and Sections 239 and 240
resply relate to discharge and framing of charge.
51. The primary consideration at the stage of framing of charge is B
the test of existence of a prima facie case, and at this stage, the probative
value of materials on record is not to be gone into.
52. The provisions which deal with the question of framing of
charge or discharge, relatable to: (i) a sessions trial or, (ii) a trial of
warrant case, or (iii) a summons case, are contained in three pairs of C
Sections under the CrPC. These are Sections 227 and 228 resply in so
far as, the sessions trial is concerned; Sections 239 and 240 resply relatable
to the trial of warrant cases; and Sections 245(1) and 245(2) resply in
respect of summons case. The relevant provisions read as follows:-
“Section 227. Discharge - If, upon consideration of the record D
of the case and the documents submitted therewith, and after
hearing the submissions of the accused and the prosecution
in this behalf, the Judge considers that there is not sufficient
ground for proceeding against the accused, he shall discharge
the accused and record his reasons for so doing. E
Section 228. Framing of charge.—(1) If, after such
consideration and hearing as aforesaid, the Judge is of
opinion that there is ground for presuming that the accused
has committed an offence which—
(a) is not exclusively triable by the Court of Session, he F
may, frame a charge against the accused and, by order,
transfer the case for trial to the Chief Judicial Magistrate,
or any other Judicial Magistrate of the first class and direct
the accused to appear before the Chief Judicial Magistrate,
or, as the case may be, the Judicial Magistrate of the first
G
class, on such date as he deems fit, and thereupon such
Magistrate shall try the offence in accordance with the
procedure for the trial of warrant-cases instituted on a
police report;
H
674 SUPREME COURT REPORTS [2022] 7 S.C.R.
A (b) is exclusively triable by the Court, he shall frame in
writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b)
of subsection (1), the charge shall be read and explained
to the accused, and the accused shall be asked whether
B he pleads guilty of the offence charged or claims to be
tried.
Section 239. When accused shall be discharged.—If, upon
considering the police report and the documents sent with it
under Section 173 and making such examination, if any, of
C the accused as the Magistrate thinks necessary and after
giving the prosecution and the accused an opportunity of
being heard, the Magistrate considers the charge against the
accused to be groundless, he shall discharge the accused,
and record his reasons for so doing.
D Section 240. Framing of charge.—(1) If, upon such
consideration, examination, if any, and hearing, the
Magistrate is of opinion that there is ground for presuming
that the accused has committed an offence triable under this
Chapter, which such Magistrate is competent to try and which,
in his opinion, could be adequately punished by him, he shall
E frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the
accused, and he shall be asked whether he pleads guilty of
the offence charged or claims to be tried.
F Section 245. When accused shall be discharged.—(1) If, upon
taking all the evidence referred to in Section 244, the
Magistrate considers, for reasons to be recorded, that no case
against the accused has been made out which, if unrebutted,
would warrant his conviction, the Magistrate shall discharge
him.
G
(2) Nothing in this section shall be deemed to prevent a
Magistrate from discharging the accused at any previous
stage of the case if, for reasons to be recorded by such
Magistrate, he considers the charge to be groundless.”
H
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v. 675
R. SOUNDIRARASU ETC. [J. B. PARDIWALA, J.]
53. The aforestated Sections indicate that the CrPC contemplates A
discharge of the accused by the Court of Sessions under Section 227 in
a case triable by it, cases instituted upon a police report are covered by
Section 239 and cases instituted otherwise than on a police report are
dealt with in Section 245. The three Sections contain somewhat different
provisions in regard to discharge of the accused. As per Section 227, the
B
trial judge is required to discharge the accused if “the Judge considers
that there is not sufficient ground for proceeding against the accused”.
The obligation to discharge the accused under Section 239 arises when
“the Magistrate considers the charge against the accused to be
groundless”. The power to discharge under Section 245(1) is exercisable
when “the Magistrate considers, for reasons to be recorded, that no C
case against the accused has been made out which, if unrebutted would
warrant his conviction”. Sections 227 and 239 resply provide for discharge
being made before the recording of evidence and the consideration as to
whether the charge has to be framed or not is required to be made on
the basis of the record of the case, including the documents and oral
D
hearing of the accused and the prosecution or the police report, the
documents sent along with it and examination of the accused and after
affording an opportunity to the parties to be heard. On the other hand,
the stage for discharge under Section 245 is reached only after the
evidence referred to in Section 244 has been taken.
54. Despite the slight variation in the provisions with regard to E
discharge under the three pairs of Sections referred to above, the settled
legal position is that the stage of framing of charge under either of these
three situations, is a preliminary one and the test of “prima facie” case
has to be applied — if the trial court is satisfied that a prima facie case
is made out, charge has to be framed. F
55. The nature of evaluation to be made by the court at the stage
of framing of charge came up for consideration of this Court in Onkar
Nath Mishra and others v. State (NCT of Delhi) and another, (2008)
2 SCC 561, and referring to its earlier decisions in the State of
Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659, and the State of G
M.P. v. Mohanlal Soni, (2000) 6 SCC 338, it was held that at that stage,
the Court has to form a presumptive opinion as to the existence of the
factual ingredients constituting the offence alleged and it is not expected
to go deep into the probative value of the materials on record. The relevant
observations made in the judgment are as follows:-
H
676 SUPREME COURT REPORTS [2022] 7 S.C.R.
A “11. It is trite that at the stage of framing of charge the court
is required to evaluate the material and documents on record
with a view to finding out if the facts emerging therefrom,
taken at their face value, disclosed the existence of all the
ingredients constituting the alleged offence. At that stage, the
court is not expected to go deep into the probative value of
B
the material on record. What needs to be considered is whether
there is a ground for presuming that the offence has been
committed and not a ground for convicting the accused has
been made out. At that stage, even strong suspicion founded
on material which leads the court to form a presumptive
C opinion as to the existence of the factual ingredients
constituting the offence alleged would justify the framing of
charge against the accused in respect of the commission of
that offence.”
56. Then again in the case of Som Nath Thapa (supra), a three-
D Judge Bench of this Court, after noting the three pairs of Sections i.e. (i)
Sections 227 and 228 resply in so far as the sessions trial is concerned;
(ii) Sections 239 and 240 resply relatable to the trial of warrant cases;
and (iii) Sections 245(1) and (2) qua the trial of summons cases, which
dealt with the question of framing of charge or discharge, stated thus:
(SCC p. 671, para 32).
E
“32...if on the basis of materials on record, a court could
come to the conclusion that commission of the offence is a
probable consequence, a case for framing of charge exists.
To put it differently, if the court were to think that the accused
might have committed the offence it can frame the charge,
F though for conviction the conclusion is required to be that
the accused has committed the offence. It is apparent that at
the stage of framing of a charge, probative value of the
materials on record cannot be gone into; the materials brought
on record by the prosecution has to be accepted as true at
G that stage.”
57. In a later decision in Mohanlal Soni (supra), this Court, referring
to several of its previous decisions, held that: (SCC p. 342, para 7)
“7. The crystallised judicial view is that at the stage of framing
charge, the court has to prima facie consider whether there
H
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v. 677
R. SOUNDIRARASU ETC. [J. B. PARDIWALA, J.]
is sufficient ground for proceeding against the accused. The A
court is not required to appreciate evidence to conclude
whether the materials produced are sufficient or not for
convicting the accused.”
58. Reiterating a similar view in Sheoraj Singh Ahlawat and
others v. State of Uttar Pradesh and another, (2013) 11 SCC 476, it B
was observed by this Court that while framing charges the court is
required to evaluate the materials and documents on record to decide
whether the facts emerging therefrom taken at their face value would
disclose existence of ingredients constituting the alleged offence. At this
stage, the court is not required to go deep into the probative value of the
materials on record. It needs to evaluate whether there is a ground for C
presuming that the accused had committed the offence and it is not
required to evaluate sufficiency of evidence to convict the accused. It
was held that the Court at this stage cannot speculate into the truthfulness
or falsity of the allegations and contradictions & inconsistencies in the
statement of witnesses cannot be looked into at the stage of discharge. D
59. In the context of trial of a warrant case, instituted on a police
report, the provisions for discharge are to be governed as per the terms
of Section 239 which provide that a direction for discharge can be made
only for reasons to be recorded by the court where it considers the
charge against the accused to be groundless. It would, therefore, follow E
that as per the provisions under Section 239 what needs to be considered
is whether there is a ground for presuming that the offence has been
committed and not that a ground for convicting the accused has been
made out. At that stage, even strong suspicion founded on material which
leads the Court to form a presumptive opinion as to the existence of the
factual ingredients constituting the offences alleged would justify the F
framing of charge against the accused in respect of that offence, and it
is only in a case where the Magistrate considers the charge to be
groundless, he is to discharge the accused after recording his reasons
for doing so.
60. Section 239 envisages a careful and objective consideration G
of the question whether the charge against the accused is groundless or
whether there is ground for presuming that he has committed an offence.
What Section 239 prescribes is not, therefore, an empty or routine
formality. It is a valuable provision to the advantage of the accused, and
its breach is not permissible under the law. But if the Judge, upon H
678 SUPREME COURT REPORTS [2022] 7 S.C.R.
A considering the record, including the examination, if any, and the hearing,
is of the opinion that there is “ground for presuming” that the accused
has committed the offence triable under the chapter, he is required by
Section 240 to frame in writing a charge against the accused. The order
for the framing of the charge is also not an empty or routine formality. It
is of a far-reaching nature, and it amounts to a decision that the accused
B
is not entitled to discharge under Section 239, that there is, on the other
hand, ground for presuming that he has committed an offence triable
under Chapter XIX and that he should be called upon to plead guilty to it
and be convicted and sentenced on that plea, or face the trial. (See :
V.C. Shukla v. State through CBI, AIR 1980 SC 962).
C 61. Section 239 of the CrPC lays down that if the Magistrate
considers the charge against the accused to be groundless, he shall
discharge the accused. The word ‘groundless’, in our opinion, means
that there must be no ground for presuming that the accused has
committed the offence. The word ‘groundless’ used in Section 239 of
D the CrPC means that the materials placed before the Court do not make
out or are not sufficient to make out a prima facie case against the
accused.
62. The learned author Shri Sarkar in his Criminal P.C., 5th Edition,
on page 427, has opined as:-
E “The provision is the same as in S. 227, the only difference
being that the Magistrate may examine the accused, if
necessary, of also S. 245. The Magistrate shall discharge the
accused recording reasons, if after (i) considering the police
report and documents mentioned in S. 173; (ii) examining the
F accused, if necessary and (iii) hearing the arguments of both
sides he thinks the charge against him to be groundless, i.e.,
either there is no legal evidence or that the facts do not make
out any offence at all.”
63. In short, it means that if no prima facie case regarding the
G commission of any offence is made out, it would amount to a charge
being groundless.
64. In Century Spinning and Manufacturing Co. Ltd. v. State
of Maharashtra, AIR 1972 SC 545, this Court has stated about the
ambit of Section 251(A)(2) of the CrPC 1898, which is in pari materia
with the wordings used in Section 239 of the CrPC as follows:-
H
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v. 679
R. SOUNDIRARASU ETC. [J. B. PARDIWALA, J.]
“It cannot be said that the Court at the stage of framing the A
charge has not to apply its judicial mind for considering
whether or not there is a ground for presuming the commission
of the offence by the accused. The order framing the charges
does substantially affect the person’s liberty and it cannot be
said that the Court must automatically frame the charge merely
B
because the prosecuting authorities by relying on the
documents referred to in S. 173 consider it proper to institute
the case. The responsibility of framing the charges is that of
the Court and it has to judicially consider the question of
doing so. Without fully adverting to the material on the record
it must not blindly adopt the decision of the prosecution.” C
In para 15, this Court has stated as:-
“Under sub-sec. (2), if upon consideration of all the documents
referred to in S. 173, Criminal P.C. and examining the accused,
if considered necessary by the Magistrate and also after
hearing both sides, the Magistrate considers the charge to D
be groundless, he must discharge the accused. This sub-
section has to be read along with sub- sec. (3), according to
which, if after hearing the arguments and hearing the accused,
the Magistrate thinks that there is ground for presuming that
the accused has committed an offence triable under Chap. E
XXI of the Code within the Magistrate’s competence and for
which he can punish adequately, he has to frame in writing a
charge against the accused. Reading the two sub-sections
together, it clearly means that if there is no ground for
presuming that the accused has committed an offence, the
charges must be considered to be groundless, which is the F
same thing as saying that there is no ground for framing the
charges.” (Emphasis supplied)
65. Thus the word ‘groundless’, as interpreted by this Court, means
that there is no ground for presuming that the accused has committed an
offence. G
66. This Court has again dealt with this aspect of the matter in
Superintendent and Remembrancer of Legal Affairs, West Bengal
v. Anil Kumar Bhunja, AIR 1980 SC 52. This Court has stated in the
said case as:-
H
680 SUPREME COURT REPORTS [2022] 7 S.C.R.
A “At this stage, even a very strong suspicion found upon
materials before the Magistrate, which leads him to form a
presumptive opinion as to the existence of the factual
ingredients constituting the offence alleged, may justify the
framing of charges against the accused in respect of the
commission of that offence.”
B
67. The suspicion referred to by this Court must be founded upon
the materials placed before the Magistrate which leads him to form a
presumptive opinion as to the existence of the factual ingredients
constituting the offence alleged. Therefore, the words “a very strong
suspicion” used by this Court must not be a strong suspicion of a vacillating
C mind of a Judge. That suspicion must be founded upon the materials
placed before the Magistrate which leads him to form a presumptive
opinion about the existence of the factual ingredients constituting the
offence alleged.
68. Section 239 has to be read along with Section 240 of the
D CrPC. If the Magistrate finds that there is prima facie evidence or the
material against the accused in support of the charge (allegations), he
may frame charge in accordance with Section 240 of the CrPC. But if
he finds that the charge (the allegations or imputations) made against
the accused does not make out a prima facie case and does not furnish
E basis for framing charge, it will be a case of charge being groundless, so
he has no option but to discharge the accused. Where the Magistrate
finds that taking cognizance of the offence itself was contrary to any
provision of law, like Section 468 of the CrPC, the complaint being barred
by limitation, so he cannot frame the charge, he has to discharge the
accused. Indeed, in a case where the Magistrate takes cognizance of an
F offence without taking note of Section 468 of the CrPC, the most
appropriate stage at which the accused can plead for his discharge is
the stage of framing the charge. He need not wait till completion of trial.
The Magistrate will be committing no illegality in considering that question
and discharging the accused at the stage of framing charge if the facts
G so justify.
69. The real test for determining whether the charge should be
considered groundless under Section 239 of the CrPC is that whether
the materials are such that even if unrebutted make out no case
whatsoever, the accused should be discharged under Section 239 of the
H CrPC. The trial court will have to consider, whether the materials relied
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v. 681
R. SOUNDIRARASU ETC. [J. B. PARDIWALA, J.]
upon by the prosecution against the applicant herein for the purpose of A
framing of the charge, if unrebutted, make out any case at all.
70. The provisions of discharge under Section 239 of the CrPC
fell for consideration of this Court in K. Ramakrishna and others v.
State of Bihar and another, (2000) 8 SCC 547, and it was held that the
questions regarding the sufficiency or reliability of the evidence to proceed B
further are not required to be considered by the trial court under Section
239 and the High Court under Section 482. It was observed as follows:-
“4. The trial court under Section 239 and the High Court
under Section 482 of the Code of Criminal Procedure is not
called upon to embark upon an inquiry as to whether evidence C
in question is reliable or not or evidence relied upon is
sufficient to proceed further or not. However, if upon the
admitted facts and the documents relied upon by the
complainant or the prosecution and without weighing or
sifting of evidence, no case is made out, the criminal
proceedings instituted against the accused are required to be D
dropped or quashed. As observed by this Court in Rajesh
Bajaj v. State NCT of Delhi, [1999 (3) SCC 259] the High
Court or the Magistrate are also not supposed to adopt a
strict hypertechnical approach to sieve the complaint through
a colander of finest gauzes for testing the ingredients of E
offence with which the accused is charge. Such an endeavour
may be justified during trial but not during the initial stage.”
71. In the case of State by Karnataka Lokayukta, Police Station,
Bengaluru v. M.R. Hiremath, (2019) 7 SCC 515, this Court observed
and held in paragraph 25 as under:- F
“25. The High Court ought to have been cognizant of the
fact that the trial court was dealing with an application for
discharge under the provisions of Section 239 CrPC. The
parameters which govern the exercise of this jurisdiction have
found expression in several decisions of this Court. It is a G
settled principle of law that at the stage of considering an
application for discharge the court must proceed on the
assumption that the material which has been brought on the
record by the prosecution is true and evaluate the material in
order to determine whether the facts emerging from the
H
682 SUPREME COURT REPORTS [2022] 7 S.C.R.
A material, taken on its face value, disclose the existence of the
ingredients necessary to constitute the offence. In State of
T.N. v. N. Suresh Rajan [State of T.N. v. N. Suresh Rajan,
(2014) 11 SCC 709, adverting to the earlier decisions on the
subject, this Court held: (SCC pp. 721-22, para 29)
B “29. … At this stage, probative value of the materials has
tobe gone into and the court is not expected to go deep
into the matter and hold that the materials would not warrant
a conviction. In our opinion, what needs to be considered
is whether there is a ground for presuming that the offence
has been committed and not whether a ground for
C convicting the accused has been made out. To put it
differently, if the court thinks that the accused might have
committed the offence on the basis of the materials on
record on its probative value, it can frame the charge;
though for conviction, the court has to come to the
D conclusion that the accused has committed the law does
not permit a mini trial at this stage.””
72. The ambit and scope of exercise of power under Sections 239
and 240 of the CrPC, are therefore fairly well settled. The obligation to
discharge the accused under Section 239 arises when the Magistrate
E considers the charge against the accused to be “groundless”. The Section
mandates that the Magistrate shall discharge the accused recording
reasons, if after (i) considering the police report and the documents sent
with it under Section 173, (ii) examining the accused, if necessary, and
(iii) giving the prosecution and the accused an opportunity of being heard,
he considers the charge against the accused to be groundless, i.e., either
F there is no legal evidence or that the facts are such that no offence is
made out at all. No detailed evaluation of the materials or meticulous
consideration of the possible defences need be undertaken at this stage
nor any exercise of weighing materials in golden scales is to be undertaken
at this stage - the only consideration at the stage of Section 239/240 is as
G to whether the allegation/charge is groundless.
73. This would not be the stage for weighing the pros and cons of
all the implications of the materials, nor for sifting the materials placed
by the prosecution- the exercise at this stage is to be confined to
considering the police report and the documents to decide whether the
H allegations against the accused can be said to be “groundless”.
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v. 683
R. SOUNDIRARASU ETC. [J. B. PARDIWALA, J.]
74. The word “ground” according to the Black’s Law Dictionary A
connotes foundation or basis, and in the context of prosecution in a criminal
case, it would be held to mean the basis for charging the accused or
foundation for the admissibility of evidence. Seen in the context, the
word “groundless” would connote no basis or foundation in evidence.
The test which may, therefore, be applied for determining whether the
B
charge should be considered groundless is that where the materials are
such that even if unrebutted, would make out no case whatsoever.
SPOPE OF EXCERICSE OF REVISIONAL POWER AT
THE STAGE OF CHARGE
75. In Munna Devi v. State of Rajasthan & Anr., (2001) 9 SCC C
631, this Court held as under:-
“3.....The revision power under the Code of Criminal
Procedure cannot be exercised in a routine and casual manner.
While exercising such powers the High Court has no authority
to appreciate the evidence in the manner as the trial and the D
appellate courts are required to do. Revisional powers could
be exercised only when it is shown that there is a legal bar
against the continuance of the criminal proceedings or the
framing of charge or the facts as stated in the first information
report even if they are taken at the face value and accepted
in their entirety do not constitute the offence for which the E
accused has been charged.”
76. Thus, the revisional power cannot be exercised in a casual or
mechanical manner. It can only be exercised to correct manifest error
of law or procedure which would occasion injustice, if it is not corrected.
The revisional power cannot be equated with appellate power. A revisional F
court cannot undertake meticulous examination of the material on record
as it is undertaken by the trial court or the appellate court. This power
can only be exercised if there is any legal bar to the continuance of the
proceedings or if the facts as stated in the charge-sheet are taken to be
true on their face value and accepted in their entirety do not constitute G
the offence for which the accused has been charged. It is conferred to
check grave error of law or procedure.
77. This Court in Asian Resurfacing of Road Agency Pvt. Ltd.
v. Central Bureau of Investigation, (2018) 16 SCC 299, has held that
interference in the order framing charges or refusing to discharge is
H
684 SUPREME COURT REPORTS [2022] 7 S.C.R.
A called for in the rarest of rare case only to correct the patent error of
jurisdiction.
78. The High Court has acted completely beyond the settled
parameters, as discussed above, which govern the power to discharge
the accused from the prosecution. The High Court could be said to have
B donned the role of a chartered accountant. This is exactly what this
Court observed in the case of Thommandru Hannah Vijayalakshmi
@ T.H. Vijayalakshmi (supra). The High Court has completely ignored
that it was not at the stage of trial or considering an appeal against a
verdict in a trial. The High Court has enquired into the materials produced
by the accused persons, compared with the information complied by the
C investigation agency and pronounced a verdict saying that the explanation
offered by the accused persons deserves to be accepted applying the
doctrine of preponderance of probability. This entire exercise has been
justified on account of the investigating officer not taking into the
explanation offered by the public servant and also not taking into
D consideration the lawful acquired assets of the wife of the public servant
i.e. the Respondent No. 2 herein.
79. By accepting the entire evidence put forward by the accused
persons applying the doctrine of preponderance of probability, the case
put up by the prosecution cannot be termed as “groundless”. As observed
E by this Court in C.D.S. Swami (supra) that the accused might have
made statements before the investigating officer as to his alleged sources
of income, but the same, strictly, would not be evidence in the case.
80. Section 13(1)(e) of the Act 1988 makes a departure from the
principle of criminal jurisprudence that the burden will always lie on the
F prosecution to prove the ingredients of the offences charged and never
shifts on the accused to disprove the charge framed against him. The
legal effect of Section 13(1)(e) is that it is for the prosecution to establish
that the accused was in possession of properties disproportionate to his
known sources of income but the term “known sources of income” would
mean the sources known to the prosecution and not the sources known
G to the accused and within the knowledge of the accused. It is for the
accused to account satisfactorily for the money/assets in his hands. The
onus in this regard is on the accused to give satisfactory explanation.
The accused cannot make an attempt to discharge this onus upon him at
the stage of Section 239 of the CrPC. At the stage of Section 239 of the
H
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v. 685
R. SOUNDIRARASU ETC. [J. B. PARDIWALA, J.]
CrPC, the Court has to only look into the prima facie case and decide A
whether the case put up by the prosecution is groundless.
81. In the overall view of the matter, we are convinced that the
impugned orders passed by the High Court are not sustainable in law
and deserve to be set aside. The circumstances emerging from the record
of the case, prima facie, indicate the involvement of the accused persons B
in the alleged offence. Having regard to the materials on record, it cannot
be said that the charge against the accused persons is groundless. There
are triable issues in the matter. If there are triable issues, the Court is
not expected to go into the veracity of the rival versions.
82. In the result, both the appeals succeed and are hereby allowed. C
The impugned orders passed by the High Court discharging the accused
persons from the prosecution are hereby set aside. The Special Court
shall now proceed to frame charge against the accused persons in
accordance with law and put them to trial.
83. It is clarified that the observations made by this Court in this D
judgment shall not be construed as final expressions of the innocence or
guilt of the accused persons. The guilt or innocence of the accused
persons shall be determined by the trial court on the basis of the evidence
that may be led by both the prosecution and the defence. We have confined
our adjudication only to consider the legality and validity of the impugned
orders passed by the High Court discharging the accused persons. E
84. Pending application, if any, also stands disposed of.
Devika Gujral Appeals allowed.
(Assisted by : Neha Sharma, LCRA)
F
G
H
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Prevention of Corruption Act"Sign in to search