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Judgment
P.D. Dinakaran, J.—Heard.
The petitioners seek to call for the records relating to the Order dated 17.8.1999, made in Memo SR. Nos. 1253 and 1254 of 1999 in Spl.
C.C.No. 4 of 1998 on the file of the learned Special Judge No. 1, XI Additional Judge, Chennai. to quash the same and to consequently, allow
the Memo filed by the petitioners for examination of all the defence witnesses as well as documents cited therein.
The petitioners are facing a trial in Spl. C.C.No. 4 of 1998 before the learned Special Judge No. 1, XI Additional Judge, Chennai. for an
offence punishable u/s 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988, for an alleged possession of property
disproportionate to his known sources of income during the check period namely 1.2.1992 to 30.6.1996, when he was a Minister in the State of
Tamil Nadu.
According to the charge sheet, the sheet-anchor of the prosecution, the assets of the petitioners prior to the said check period was valued at
Rs.26,990/- with a cash balance of Rs.5,252/- and Rs.4,558/- and eight pieces of land; but the property assets at the end of the check period is
Rs.43,56,343/-, and therefore, the assets acquired during the check period is valued to the tune of Rs.43,29,353/-. On the other hand, his known
source of income during the check period, was valued at Rs.12,35,875/-. After taking into account, the expenditure of Rs.2,78,686/- and the
likely savings of a sum of Rs.9,57,189/- during the check period, the respondent charged the petitioners for possession of disproportionate assets
to the tune of Rs.33,72,164/-
It is further stated by the prosecution that during the investigation, the petitioners were given an opportunity to explain as to the alleged
disproportionate assets, but there was no explanation from the petitioners; nor the petitioners produced any income tax returns before the
investigating officer to justify their assets as lawful. Hence, a charge sheet was framed on 13.11.1998; prosecution witnesses were examined from
22.12.1998 till 7.7.1999 and the case was posted for questioning on 14.7.1999 and thereafter adjourned to 20.7.1999 when both the accused
were questioned u/s 313 Cr.P.C. but the accused did not furnish the list of persons to be examined as witnesses nor the documents proposed to
be relied upon.
On 23.7.1999 a written statement was submitted by the petitioners along with a part of list of witnesses containing 188 names. Thereafter, on
30.7.1999 the petitioners filed a complete list of witnesses, but without a petition to condone the delay in filing the list. Hence, the matter was
adjourned to 4.8.1999. The learned Judge made a docket entry on 30.7.1999 as follows:-
''I would like to grant sufficient time to file entire list of documents and the entire list of witnesses in court; however it should be borne in mind that
the list of witnesses should not be in the idea of protracting the case by citing hundreds of witnesses.''
Thereafter, again the case was posted on 4.8.1999. The learned Judge made a docket entry dated 4.8.1999 that a list of hundreds and
hundreds of witnesses should not be filed, making the judicial system, a mockery.
Objecting the docket entries dated 30.7.1999 and 4.8.1999 of the learned Judge, the petitioners preferred Crl. M.P. Nos. 6988 and 6989 of
1999, seeking transfer of the above case from the file of the learned XI Additional Judge. Chennai, and to stay all further proceedings, pending
disposal of the above petition for the Law Weekly transfer. This Court, by Order dated 16.8.1999 in Crl. M.P. No. 6988 and 6989 of 1999,
after narrating the above relevant dates, held that it could not be said that the petitioners could not have a fair and impartial trial merely because of
the said docket entries dated 30.7.1999 and 4.8.1999 and that the presiding officers are expected to point out the defects, if any, and also guide
the parties, to regulate the Court work. Finding that no motive could be attributed against the learned Judge, the Crl. M.P. Nos. 6988 and 6989 of
1999 were dismissed by Order dated 16.8.1999. On the same day, the accused also filed a list of 260 defence witnesses with Memo SR. Nos.
1253 and 1254 of 1999, but did not file the list of documents. The learned Special Judge passed an Order dated 17.8.1999, permitting the
petitioners to examine 20 witnesses out of the list of witnesses from 1 to 245 from whom the petitioners were stated to have received gifts at the
time of their wedding and the reception thereafter, and also permitted to examine the witnesses 246 to 260; and the matter was adjourned to
18.8.1999 with a direction to the petitioners to submit a list of. documents. The petitioners filed a list of 13 documents to be relied on their behalf
on 18.8.1999. Accordingly, from 19.8.1999 till 2.11.1999, the petitioners examined 33 defence witnesses.
Aggrieved by the said Order dated 17.8.1999 of the learned Special Judge, restricting the number of defence witnesses, the petitioners have
preferred the above Criminal O.P. and seek a further direction to allow them to examine all the defence witnesses, cited in the Memo SR. Nos.
1253 and 1254 of 1999.
10.1. Mr. K. Chandru, learned senior counsel appearing for the petitioners, contends that in a case that arises under the provisions of the
Prevention of Corruption Act, 1998, the accused gets an opportunity to explain the known source of his income to disprove the charges framed
against him, only when the trial commences, but not at an earlier stage of investigation, as held in State of Maharashtra v. Ishwar Piraji Kalpatri
reported in (1991) 1 SCC 542.
10.2. In assailing the said Order dated 17.8.1999, Mr. K. Chandru, learned senior counsel for the petitioners, further contends that as per Section
134 of the Indian Evidence Act, no particular number of witnesses shall, in any case, be required for the proof of any fact, and therefore, the
impugned Order dated 17.8.1999, restricting the number of defence witnesses, is contrary to Section 134 of the Indian Evidence Act. Mr. K.
Chandru, placing reliance on the decision in The Commissioner of Income Tax, West Bengal II Vs. Durga Prasad More, contends that the law
does not prescribe any quantitative test to find out whether the onus in a particular case has been discharged or not; and therefore, what is to be
weighed is only the quality of evidence, but not the quantity of evidence, in discharging the onus to prove the case of the petitioners.
10.3. Mr. K. Chandru, learned senior counsel for the petitioners, contends, that as per the provisions of the Prevention of Corruption Act, 1988, if
certain facts are proved by the prosecution that the accused posses assets disproportionate to the known sources of their income, then the burden
shifts on to the accused to prove that in spite of the assets being disproportionate to their known sources of income, they are not guilty of the
offences, and therefore, the Court should have permitted the petitioners to examine as many witnesses as required, to prove that they are not guilty
of such offences and should have given the, benefit of such opportunity more to the accused than to the prosecution, as held in Sajjan Singh Vs.
The State of Punjab,
10.4. Mr. K. Chandru, learned senior counsel, also contends that since the petitioners take a defence that they received wedding gifts in cash to
the tune of Rs.11,73,893/- from among 1827 persons, who are able to be recognized through the video cassettes recorded at the time of their
wedding and reception, among whom the petitioners proposed to examine 245 The Law Weekly (Crl.) May, 2000 amine 245 witnesses to
discharge their burden that they received a major portion of the amount in dispute as wedding gift, the onus required to be discharged on the part
of the petitioners is only to establish the preponderance of probability, by examining those 245 witnesses, as held in State of Maharashtra Vs.
Wasudeo Ramchandra Kaidalwar,
10.5. Mr. K. Chandru. learned senior counsel, further contents that, as held in Munir Ahmad and others Vs. State of Rajasthan, these cash gifts
valuing from Rs.100/ to Rs.1000/- from each well-wisher could be proved only by calling the witnesses to the witness stand, but cannot be
substituted by an affidavit unless the law permits, and therefore, the petitioners have every right in law to examine these witnesses to prove that they
arc not guilty, as the petitioners cannot be convicted without an opportunity being given to present their evidence, and that the same having been
denied to them, it would only render the trial as unfair, causing grave injustice, as held in Ronald Wood Mathams Vs. State of West Bengal, . as
the very offence punishable u/s 13(1)(e) of the Prevention of Corruption Act is nothing but a deemed or fictional offence.
10.6. In any event, Mr. K. Chandru. learned senior counsel for the petitioners, referring to the decision in M. Krishna Reddy v. State Deputy
Superintendent of Police, Hyderabad, reported in AIR 1991 SC 313. contends that after the prosecution had proved the required ingredients, the
burden to satisfactorily account for possession of such resources or property shifts on to the accused, and therefore, the petitioners are entitled to
examine all the witnesses proposed by them inasmuch as u/s 13(1)(e) of the Prevention of Corruption Act. 1988, it is not the mere acquisition of
properly that constitutes the offences under the provisions of the Act, but it is the failure to satisfactorily account for such possession that makes the
possession objectionable, as offending the law.
10.7. Mr. K. Chandru, learned senior counsel for the petitioners, finally, contends that the explanation to Section 13(1) of the Prevention of
Corruption Act. 1988. is relevant only for the purpose of getting sanction while proceeding under the provisions of the Prevention of Corruption
Act against the public servants, but not intended for the purpose of restricting the number of witnesses proposed to be examined by the public
servant during the trial.
11.1. Mr. R. Shanmugasundaram, learned Public Prosecutor, is not disputing the ratio laid down in State of Maharashtra and others Vs. Ishwar
Piraji Kalpatri and others, that the accused gets an opportunity to explain the known source of his income to disprove the charges framed against
him, only when the trial commences, but not at an earlier stage of investigation. Similarly, the learned Public Prosecutor is also not disputing the
principles laid down in The Commissioner of Income Tax, West Bengal II Vs. Durga Prasad More, , that the law does not prescribe any
quantitative test to find out whether the onus in a particular case has been discharged or not; and what is required to be weighed is only the quality
of evidence, but not the quantity of evidence, is also not disputed.
11.2. However, Mr. R. Shanmugasundaram. learned Public Prosecutor appearing for the respondent, invited my attention to Section 136 of the
Indian Evidence Act, which empowers the learned trial Judge to decide as to the admissibility of evidence. Section 136 of the Indian Evidence Act.
reads as follows:
Section 136- ""Judge to decide as to admissibility of evidence. When either party proposes to give evidence of any fact, the judge may ask the
party proposing to give evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks
that the fact, if proved, would be relevant and not otherwise.
If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last mentioned fact must be
proved before evidence is given of the fact first mentioned, unless, the party undertakes to give proof of such fact and the Court is satisfied with
such undertaking.
If the relevance of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of
the first to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.
11.3. Mr. R. Shanmugasundaram learned Public Prosecutor, also invited my attention to the definitions ""Relevant"" and ""Facts in issue"" u/s 3(e) of
the Indian Evidence Act. which read as follows:-
Relevant"" - One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of
this Act relating to the relevancy of facts in issue - The expression ""facts in issue"" means and includes - any fact from which, either by itself or in
connection with other facts, the existence, non-existence, nature or extent of any right, liability, or disability, asserted or denied in any suit or
proceeding, necessarily follows
11.4. My attention is also drawn by the learned Public Prosecutor to Section 5 of the Indian Evidence Act. which reads as follows:
Section 5 - Evidence may be given of facts in issue and relevant facts. - Evidence may be given in am suit or proceeding of the existence or
nonexistence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others
Explanation - this section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the
time being in force relating to Civil Procedure
11.5. According to Mr. R. Shanmugasundaram. learned Public Prosecutor, the petitioners are not entitled to pump in the evidence, which arc not
permissible in law. as they are neither relevant nor facts in issue, particularly in the light of Section 13(1)(e) and the Explanation given u/s 13(1) of
the Prevention of Corruption Act, which read as follows:
Section 13 - Criminal misconduct by a public servant - (1) A public servant is said to commit the offence of criminal misconduct.-
(a)
(b)
(c)
(d)
(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 known sources of income.
Explanation: - For the purposes of this section, ""known sources of income"" means income received from any lawful source and such receipt has
been intimated in accordance with the provisions of any law, rules or Orders for the time being applicable to a public servant
11.6. Applying the above provisions of the Indian Evidence Act, requiring the petitioners to discharge their burden that they are not guilty of the
offences punishable u/s 13(1)(e) read with the Explanation therewith. Mr. R. Shanmugasundaram, learned Public Prosecutor, contends that while
the petitioners have got the right to establish the preponderance of probability to prove that they are not guilty by adducing their defence witnesses,
of course, as many as possible as per Section 134 of the Indian Evidence Act, the same should also stand to the test of the Explanation to Section
13(1) of the Prevention of Corruption Act. 1988. referred to above. In this regard, the learned Public Prosecutor places reliance on the decision in
P. Nallammal Etc. Vs. State Rep. by Inspector of Police,
11.7. Referring to various provisions of the Wealth Tax Act, 1957, Gift Tax Act, 1958 24 LW (Cri.) May, 2000 and Income Tax Act, 1961, Mr.
R. Shanmugasundaram, learned Public Prosecutor, contends that the petitioners are required to intimate their income from any lawful source,
including the alleged wedding gift, to the authorities concerned, in accordance with the provisions of the above Acts, as well as any other law, rules
or orders that are applicable to the petitioners. He further contends that, the petitioners, having failed to intimate the income received from lawful
source, assuming, by way of wedding gifts, are not entitled to prove the same by examining any number of witnesses in the witness stand, unless
those gifts were intimated to the authorities concerned under the said Act in the returns submitted thereunder, and therefore, the examination of
these witnesses cannot be said to be either evidence of facts in issue or relevant facts. Consequently, it is contended that the learned Special Judge
has rightly exercised his discretion in restricting the witnesses, taking note of the fact that the petitioners had not filed any list of documents relating
to any returns, disclosing the receipt of such gifts during the alleged check period.
In reply, Mr. K. Chandru, learned senior counsel for the petitioners, referring to the decision in Central Bureau of Investigation Vs. v.C. Shukla
and Others, contends that the mere statements and the entries in the books of accounts would not alone be sufficient evidence to charge any
person with guilt, and therefore, neither the intimation of the receipt of income from any lawful source in the returns to the authorities concerned as
required under the provisions of the Wealth Tax Act, 1957, Gift Tax Act. 1958 and Income Tax Act 1961. or any other law, rules or orders, nor
the failure to do so. be a deciding factor for permitting the petitioners charged under the provisions of the Prevention of Corruption Act. 1988. to
discharge the burden of the petitioners that they are not guilty of the offences punishable u/s 13(2) read with Section 13(1)(e) of the Prevention of
Corruption Act, 1988.
I have given a thoughtful consideration to the submissions of both sides.
In P. Nallammal Etc. Vs. State Rep. by Inspector of Police, the Apex Court, interpreting the explanation to Section 13(1) of the Prevention of
Corruption Act, 1988, has held as follows:
The known sources of income of the public servant, for the purpose of satisfying the Court, should be ""any lawful source"". Besides being lawful
source the Explanation further enjoins that the receipt of such income should have been intimated by the public servant in accordance with the
provisions of any law applicable to such public servant at the relevant time. So a public servant cannot now escape from the tentacles of Section
13(1)(e) of the Prevention of Corruption Act by showing other legally forbidden sources, albeit such sources are outside the purview of Clauses
(a) to (d) of the Sub-section.
The explanation to Section 13(1) of the Prevention of Corruption Act, 1988 reads as follows:
Explanation:- For the purposes of this section, ""known sources of income"" means income received from any lawful source and such receipt has
been intimated in accordance with the provisions of any law, rules or Orders for the time being applicable to a public servant.
The words ""for the purposes of this section"" make it clear that the Explanation is not only relevant for the purpose of obtaining sanction before
proceeding against the public servant for the offences punishable u/s 13(1) of the Prevention of Corruption Act, but also for establishing the
offences punishable u/s 13(1) of the Prevention of Corruption Act. by the prosecution, and also for discharging the burden by the accused that he
is not guilty of such offences. That apart, the Explanation makes it clear that, to make the proper resource or to establish that the property
possessed by the petitioner is from known source of income, it should be satisfactorily The 2000 (Cri.) LW. 25 proved that (i) such income is
received from any lawful source, and further, (ii) the receipt of the same has to be intimated in accordance with the provisions of any law, Rules or
Orders for the time being, applicable to a public servant. Therefore, both the ingredients should be satisfactorily established to prove that the
pecuniary resources or property in question do not constitute the offences punishable u/s 13(1) of the Prevention of Corruption Act.
Even though the learned Public Prosecutor elaborately referred the provisions of the Wealth Tax, Act. 1957. Gift Tax Act. 1958 and Income
Tax Act. 1961, in my considered opinion, it may not be proper to analyze the case of the prosecution or the defence of the petitioners at this stage
in the light of those provisions, while testing the Order of the learned Special Judge dated 17 8.1999. restricting the number of defence witnesses,
as it would otherwise prejudice the trial No doubt there cannot be any dispute as to the well-settled proposition that if the words are capable of
two constructions, one of which is more favorable to the accused than the prosecution, the Court will be justified in accepting the one which is
more favorable to the accused. However, there can be no justification, either for adding or omitting any words, to make the provision of law less
stringent than the legislature has made it. But at the same time, there can be no doubt that the language of such special enactments must be strictly
construed.
In the instance case. I find that the words used in the Explanation u/s 13(1) of the Prevention of Corruption Act are not capable of giving two
constructions, in view of the word ""and"" used thereafter. Therefore, the contention of Mr. K. Chandru learned senior counsel for the petitioners,
that the trial in question would be prejudiced in view of the restriction of the number of defence witnesses proposed to be examined, cannot be
accepted, as the learned Special Judge has rightly exercised his discretion empowered u/s 136 read with Section 5 of the Indian Evidence Act,
testing the same in the light of the fact in issue and the relevant facts of the case on hand, to satisfy the explanation for the words ""known sources of
income ""under Section 13(1) of the Prevention of Corruption Act, 1988. Therefore, I am unable to accept the contention of Mr. K. Chandru,
learned senior counsel for the petitioners, that it is suffice for the petitioners to establish the preponderance of probability by examining these
witnesses, namely, witnesses 1 to 245, even though the receipt of their wedding gifts was not intimated to the authorities concerned under the
Wealth Tax Act, 1957. Gift Tax Act. 1958 and Income Tax Act 1961.
No doubt, either the disclosure or non-disclosure of these gifts in the returns to the authorities concerned under the Wealth Tax Act. 1957. Gift
Tax Act. 1958 and Income Tax Act. 1961. will not, by itself, immune any offence punishable u/s 13(1) of the Prevention of Corruption Act But
still, the intimation of or the failure to intimate the receipt of gifts to the authorities concerned in accordance with law becomes a relevant factor for
the purpose of deciding the fact in issue, for discharging the onus by the petitioners that they are not guilty of such offences punishable u/s 13(1) of
the Prevention of Corruption Act. 1988. in view of the Explanation to Section 13(1) of the Prevention of Corruption Act. Therefore, I do not see
any wrongful exercise of discretion by the learned Special Judge in restricting the defence witnesses proposed to be examined by the petitioners
nor the permission given by the learned Special Judge to examine 20 witnesses out of the witnesses 1 to 245 and witnesses 246 to 260 will give a
right to the petitioners to examine the remaining witnesses on the ground that they cannot be convicted without giving an opportunity to them to
examine the defence witnesses, contending that the burden is shifted on them to prove that they arc not guilty.
In my considered opinion, the learned Special Judge has rightly exercised his discretion, conferred on him u/s 136 read with Section 5 of the
Indian Evidence Act and restricted the defence witnesses, taking note of the Explanation for the words "" known sources of income"" for the
offences punishable u/s 13(1) of the Prevention of Corruption Act, 1988, construing the said Explanation strictly, so that both the ingredients of the
Explanation are complied with in order to achieve the object of the Prevention of Corruption Act, 1988, as it is well settled in law that the
provisions of the special enactments, in the instant case, the Prevention of Corruption Act. 1988, should be strictly construed to achieve the object
of the legislation in enacting the said Act, viz., to make the existing anti-corruption laws more effective by widening their coverage and by
strengthening the provisions relating to the prevention of corruption and for matters connected therewith. That apart, in Order to expedite the
proceedings, provisions for day-to-day trial of cases and prohibitory provisions with regard to grant of stay and exercise of powers of revision on
interlocutory Orders have also been included.
In the instant case, even though the petitioners moved an application in the above Criminal O.P. to stay the proceedings in Spl. C. No. 4 of
1998 on the tile of the learned Special Judge No. 1 XI Additional Judge. Chennai. this Court has not passed any Order of stay, taking note of the
object of and the various provisions of the Prevention of Corruption Act. 1988. But. unfortunately, news were published in the Press as though this
Court had stayed the proceedings in Special C.C. No. 4/98. which necessitated this Court to pass the following remarks on 17.11.1999:
It is brought to my notice that certain comers of the Press have come out with incorrect news carrying mistake of facts that the proceedings in
C.C No. 4/96 on the file of the learned Special Judge No. 1 (XI Additional Judge). Chennai. had been stayed by tins Court, whereas, the fact
remains that this Court, by Order dated 12.11.1999, only adjourned the case, taking into account that the above Criminal O.P. and Crl. MP. No.
9380 of 1999 are pending as part-heard; but never, granted any stay, as published in some newspapers.
It may be noted that, if the matter had been stayed as published, how could the petitioners, file an application to reopen the prosecution witness
and notice was Ordered to the State by the learned Judge in the said application, as informed by the learned senior counsel for the petitioners as
well as the learned Public Prosecutor.
It may be a hypersensitive issue for the Press to publish the said news for the reasons better known to them; but not for the Court, as such an
attempt, if permitted, will pollute the administration of justice. The freedom of the Press, therefore, does not entitle the Press to publish the news
relating to judicial proceedings in their own way or in a manner they desire it to be published.
No party, much less the Press, be given a licence to misrepresent the proceedings or the Orders of the Court'', or to publish any such incorrect
news. The parties, as well as the Press, while publishing any such news relating to the proceedings of the Courts, must realise that the proceedings
of the Courts cannot be featherly weighed; and in am event, the Court, on such contingencies, will not ignore such deliberate attempts by any party
or the Press, tending to scandalise the proceedings of the Court, which would be a negation of rule of law.
This Court, however, while appreciating the highly valued contributions of the Press in upholding the dignity of the Court proceedings and
guarding the public interest, hopes that the Press would equally realise their due regard and respect to the Court proceedings and their
responsibility towards the general public and hereafter desist from publishing such erroneous and irresponsible news
The Registry is directed to put on notice the above remarks of the Court to the Press Section
I am constrained to place the above remarks of the Court on record, hoping that such unpleasant events shall be avoided in future.
Finding no merit in the above Criminal O.P., the same is dismissed of course, making it clear that the learned Special Judge No. 1, XI Additional
Judge, Chennai. shall complete the trial and pass appropriate final Orders in Sp. C.C. No. 4 of 1998, without being prejudiced by the dismissal of
the above Criminal OP. Crl.M.P. No. 9380 of 1999 is also dismissed. No costs.