State of H.P. vs Iqbal Singh Kohli

V.D. Misra, C.J.—This revision by the State is directed against the order of the Special Judge, Mandi Sessions Division, at Mandi, discharging the Respondent in respect of an offence u/s 5(2) of the Prevention of Corruption Act, 1947 (referred to as the Act).

The prosecution case, briefly stated, is that the Respondent started his service career as a temporary Assistant Clerk in the Income Tax Department at Amritsar on 18th November, 1943, on a salary of Rs. 40/- per month. He was transferred to various places during the course of his employment. After partition of the country he was posted at Amritsar as L.D.C. Stenographer. After working as U.D.C., Head Clerk, and Inspector of Income Tax, he was promoted as Income Tax Officer (Class-II) in August, 1965, and he started working as such at Chandigarh on 21st August, 1965. He was thereafter transferred to Mandi (Himachal Pradesh) sometimes in May/ June, 1969. From Mandi he was transferred in April, 1972 to Karnal.

Assets of the Respondent were checked. The period of check is stated to be from 1-7-1961 to 31-3-1971. After calculating the total income from salary and other known sources as well as the expenditure incurred by the Respondent, it was found that the Respondent had assets disproportionate to his known sources of income to the extent of Rs. 52,638/- for which the Respondent could not give any reasonable explanation. After obtaining the requisite sanction the Respondent was charge-sheeted for an offence punishable u/s 5(2) of the Act read with Section 5(1)(e) of the Act.

The learned Special Judge came to the conclusion that the prosecution was not justified in looking into the assets acquired by the Respondent before 18th December, 1964, the day the amendment introducing Section 5(1)(e) of the Act had come into force. He, therefore, discharged the Respondent.

It is not disputed before me, and indeed it cannot be disputed, that Section 5(1)(e) read with Sub-section (2) of Section 5 could not be retrospective in operation. The Supreme Court in the State of Maharashtra Vs. Kaliar Koil Subramaniam Ramaswamy, while holding that the newly inserted Clause (e) became effective only after December, 1964, by virtue of amended Act No. 40 of 1964, approved the following observation of the High Court:

In the absence of any evidence on record to show that the Appellant acquired or was found to be in possession of pecuniary resources or property disproportion ate to his known sources of income after the coming into force of the Amending Act" he was entitled to the protection of Clause (1) of Article 20 of the Constitution...

In Sajjan Singh Vs. The State of Punjab, the Supreme Court ruled that though the Act had no retrospective operation, the pecuniary resources or property in the possession of an accused or any other person on his behalf acquired before the coming into force of the aforementioned amendment can be taken into consideration.

It is true that for the purpose of framing the charge the truth, veracity and effect to the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused, but if the evidence fully accepted cannot show that the accused committed the offence then the accused has to be discharged State of Bihar Vs. Ramesh Singh,

Now in the charge-sheet income of the Respondent from various sources has been calculated from 1-7-61 to 31-3-71. The total income was calculated at Rs. 1,25,573/-. While calculating the expenditure between this period the house-hold expenditure was estimated at Rs. 40,950/-. This is stated to be based: "In the light of data supplied by the Central Statistical Organisation and Labour Bureau and reduced farther to make the figure most reasonable (Emphasis supplied). I have been shown this data prepared for the months of July-December, 1969. It is admittedly unreasonable. If the range of the pay for which this data of expenditure is calculated is taken at the minimum then admittedly the expenditure has to be much more than the pay which a person receives. It is not disputed before me that this data was the basis on which the house-hold expenditure of the Petitioner was calculated. The data uses 1960 as the base. The introduction states:

A need for cost of living index numbers applicable to the middle class was often expressed in the past by Members of Parliament and other interested in studies relating to wages and salaries of the middle class employees. Accordingly family living surveys were conducted in 1958-59 in 45 urban centers. Based on the weighting diagrams provided by these surveys, consumer price indices for the non-manual employees with 1960 as the base are released since August, 1966 in the monthly abstract of statistics by the Central Statistical Organisation.....The primary data has been collected by the National Sample Survey and the compilations done by the Prices and Cost of Living Division of the Central Statistical Organisation and the Computer Centre, Department of Statistics, Government of India.

Though the data would make the house-hold expenditure to be about Rs. 60,000/-, it must have been considered unreasonable by the Investigating Officer and for that reason was reduced further "to make the figure most reasonable". In other words, it was a hypothetical method of calculating the expenditure. This expenditure over a period of ten years would place the average monthly expenditure at Rs. 340/-. It may now be noticed that the net salary (i.e. take-home pay) received by the Respondent (based on the prosecution documents) was between Rs. 222/- to Rs. 303/- between July, 1961 to July, 1964. In July, 1965, the Respondent received a net salary of Rs. 389/-. Thereafter the net salary of the Respondent steadily increased. This was mainly because of the increase in the dearness allowance and the house rent allowance which the Respondent started getting in July, 1975. The project allowance of Rs. 50/-per month also became payable to the Respondent in July, 1969, and by January, 1971, it was increased to Rs. 65/-. It may be noticed that in the charge-sheet expenses of education of the children have been shown separately at Rs. 15,000/- and odd. Expenses on account of house rent, electricity, and water etc. have also been shown separately as Rs. 12,343/-. Expenditure for maintaining scooter is also a separate item. All these items are in addition to house-hold expenditure. In other words, if the house-hold expenditure, which is shown as reasonable, is to be given any credit, it would only mean that right from the first day the Respondent was spending more than his take-home pay between the check period.

It is true that the house-hold expenditure, and even other expenditure, is within the special knowledge of the Respondent. However, it does not absolve the prosecution to prove the same like any other fact being proved in a criminal case. As a fact cannot be allowed to be proved on the basis of conjectures only, the method adopted for proving the house-hold expenditure cannot be taken to be prima facie evidence and accepted.

Mr. Malkiat Singh, Assistant Advocate General, admits that the basis of the data for calculating house-hold expenditure cannot be termed as reasonable. He, however, submits that the reason for reducing the house-hold expenditure to the present figure was to make it look reasonable. He states further that he does not rely on this data and it need not be taken into consideration. Indeed he makes an offer to the Respondent to name his figure for the expenditure which may be taken into consideration.

Mr. Sibbal submits that the Respondent''s house-hold expenditure could not be more than Rs. 22,150/-. It is submitted that the Respondent was living frugally. He was educating his children in Government schools and not sending them to private institutions. The list of articles found in the house of the Respondent when the Investigating Officer raided, shows the type of life the Respondent was leading. None of the children during the check period was sent to any engineering or medical college. One of the children was a boy who was physically and mentally retarded. He was admitted in Delhi in January, 1962. The Respondent has placed on record the photostat copies of inland letters dated February, 1962, and June, 1963, to show that the Respondent''s father contributed Rs. 4,400/- at the rate of Rs. 40/- to Rs. 50/- per month over a period of 110 months. Similarly one Attar Singh a relation at Delhi is stated to have contributed Rs. 1,100/-. It is contended that had the Investigating Officer questioned the Respondent on this aspect, all the documents would have been produced before him. The effort is to show that the expenses incurred by the Respondent on the education of his children were not Rs. 15,000/- and odd but were much less.

It is also submitted that the Investigating Officer has shown expenses of Rs. 10,192/- about the marriage of his daughter celebrated on 25th April, 1978, at Ludhiana. This is stated to be based on the written statement of the Respondent and the documents recovered from his house search. It is submitted that the investigation was not fair inasmuch as the Investigating Officer should have known that it is a well established custom that at the time of the marriage of daughters various relations and intimate friends make payments in cash instead of giving any gifts. No such payment has been shown towards the income of the Respondent by the Investigating Officer. Now, judicial notice can be taken of this custom which is prevalent in this part of the country. The purpose of this custom is to help financially the needy father of a bride. It is a sort of co-operative effort by everyone to render monetary help.

Mr. Sibbal contends that the Investigating Officer was not justified in taking the entire assets of the Respondent on 1-7-1961 at Rs. 8,250/-. This has been done on the basis of an insurance policy which the Respondent took in respect of his clothing and other house-hold articles as well as the jewellery with his wife. The jewellery was insured for Rs. 3,000/-. At the time of the raid, the jewellery was found to be 47 tolas and it was assumed that this jewellery was got during the period of check dates. It is not disputed that the Respondent had a locker on 1-7-1961. The locker must not have been empty. The jewellery and other articles lying in the locker needed no insurance and so there was no question of insuring them. But what were these articles? Mr. Sibbal submits that it was the duty of the Investigating Officer to question the Respondent to find out these articles in order to estimate the assets which the Respondent had on 1-7-1961. My attention has been drawn to an earlier order passed by a learned Judge of this Court on 7-11-1981. The prosecution was ordered "to furnish information with respect to assets held by the Petitioner on 1-7-1961. i.e. before the check period, so that it can be ascertained that the said assets are not included in the assets found in the possession of the Respondent on the date of search." No such information has been given up-to-date. It is stated that the Investigating Officer has since retired and it is not possible to contact him.

It is evident from the above discussion that the allegation of the prosecution that the Respondent has disproportionate assets to the extent of Rs. 52,638/- is mostly based on conjectures.

The Supreme Court in the State of Maharashtra Vs. Wasudeo Ramchandra Kaidalwar, observed that the first part of Section 5(1)(e) casts a burden on the prosecution and the second on the accused. It also observed:

To substantiate the charge, the prosecution must prove the following facts before it can bring a case u/s 5(1) (e), namely, (1) it must establish that the accused is a 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 possession of the accused were disproportionate to his known sources of income

(Emphasis supplied).

Of course the stage of proving facts in this case has yet to arrive. But this has to be based on the documents and evidence already collected. As already observed, instead of calculating items like the house-hold expenditure etc., objectively these are based on mere conjectures.

It is submitted that the prosecution should be quashed also on the ground that it is hanging fire for the last about 12 years and no progress has been made. The case was registered on 18th May, 1971. The charge-sheet is dated 3-7-1973. 329 persons have been cited as prosecution witnesses. There are a good number of documents also. The charge-sheet was presented to the court on 7th August, 1973. It was on 17th September, 1973, that the Respondent put in appearance. Thereafter the case was adjourned from time to time for various reasons. It was on 7th March, 1975 that the statement of the Petitioner was recorded u/s 251A(2) of the Code of Criminal Procedure by the Special Judge. Another eight months were to expire before the charge was framed on 1st November, 1975. Thereafter the High Court stayed the proceedings. By an order dated May 27, 1977, the High Court quashed the charge and remanded the case for fresh decision. The record was received on 17-6-1977 by the trial court. It took another two years for the Special Judge to re-hear the parties on the question of charge. By an order dated 10th August, 1978, the accused was discharged. The State thereafter filed the present revision.

It is submitted that even after the expiry of 9 years of the police filing the charge-sheet charge has not been framed. Keeping in view the number of witnesses cited and the documents placed on record it is evident that it is likely to take still few years more before the case can be decided. The Respondent is stated to be due to retire from service by the end of this year.

In an unreported judgment of the Madhya Pradesh High Court in Misc. Criminal Case No. 16 of 1976 M/s Jagaran Limited and Anr. v. The State and Ors.-decided on 11-8-1976, the learned Judge of that Court exercised his inherent powers and quashed the proceedings on the ground that the case had dragged on for more than 11 years without being committed under Sections 420, 409, 468, 477A etc., and 227 witnesses and voluminous documentary evidence was still to be produced in the trial court. Finding that "each party has contributed to the delay and the prosecution case has advanced at a snail''s speed only during all this long period of eleven years, it is a drudgery to keep such cases alive for all these years and make the accused persons suffer humiliation and mental torture which indeed is atrocious." Relying on an earlier decision of that Court in D. G. Mulay v. State of M.P. (1969 M.P.L.J. 26), in which the High Court had exercised inherent powers to quash the proceedings since committal proceedings could not be completed for 10 years, the learned Judge exercised inherent powers and quashed the proceedings.

In Prithvi Raj and Another Vs. State of Haryana, , the case was registered against the accused in the year 1969, the charge-sheet was presented in the court on 4th September, 1979 and the charge was framed by the court in 1980. Date for further proceedings was fixed for 29th May, 1980. It was observed:

To allow the criminal proceedings to continue further after a long lapse of time of about 11 years from the date of alleged commission of offence would in my opinion, amount to permitting a Court proceeding to degenerate into a weapon of harassment and would not at this stage, achieve any salutary public purpose. On the facts and circumstances obtaining in the instant case, such continuance constitutes gross abuse of process of Court. It is thus imperative for securing the ends of justice that this criminal proceeding should no longer be allowed to stand and must be quashed.

Keeping in view all the facts and circumstances of this case discussed above, I will dismiss the revision petition filed by the State.