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CASE NO.: Appeal (crl.) 1997 2000

PETITIONER: STATE BY CENTRAL BUREAU OF INVESTIGATION

       Vs.

RESPONDENT: SHRI S.  BANGARAPPA

DATE OF JUDGMENT:       20/11/2000

BENCH: R.P.Sethi, K.T.Thomas

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J       J U D G M E N T

     THOMAS,   J.    Leave  granted.   A  case   has   been charge-sheeted  by the Central Bureau of Investigation (CBI) against S.  Bangarappa, one time Chief Minister of Karnataka State,   alleging  that  he   had  amassed  wealth   grossly disproportionate  to  his known sources of income  during  a check  period when he held public offices either as Minister or  Chief Minister.  The offence under Section 13(2) of  the Prevention  of  Corruption Act, 1988, (for short the  Act) was  pitted against him, read with Section 13(1)(e)  thereof on  the  ground  that  he was  in  possession  of  pecuniary resources  and assets so disproportionate that he could  not satisfactorily  account  for  them.    When  respondent  (S. Bangarappa)  moved the High Court of Karnataka for  quashing the  said  criminal proceedings, a single judge of the  High Court,  as per the order impugned in this case, quashed  the same.   This appeal, by special leave, is at the instance of the CBI in challenge of the said order.

     The  check period is nearly a decade (between 9.8.1988 and  31.10.1997)  during  which the respondent  held  public offices  either as MLA or as a Minister in the State cabinet or  as  Chief  Minister  of  the State or  as  a  Member  of Parliament.   According  to the CBI the total  income  which respondent  had from all his known sources of income, during the  aforesaid  period,  was  around   30  lakhs  and  after deducting  his expenses (which were worked out approximately to be 22 lakhs) he could not have made a saving of more than 7  lakhs of rupees.  But the CBI found that during the  said period  the  respondent had acquired assets worth more  than Rs.1,16,00,000/-  (one crore sixteen lakhs) for which he had no explanation whatsoever.

     When  respondent was brought before the trial court he pleaded  for  a discharge from the prosecution for which  he raised  various  contentions.   The   special  judge   heard arguments  at that stage for a long time spreading over to a number  of  days.   He  then passed a  very  detailed  order (running  into 57 closely typed pages) just for holding that there  is a prima facie case against the accused person  to frame  charge under Section 13 read with Section 13(1)(e) of

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the Act and to proceed with the trial.

     Respondent then moved the High Court under Section 482 of  the  Code  of Criminal Procedure (for  short  the  Code) challenging  the  aforesaid order.  Three  contentions  were mainly  raised by him before the High Court.  First was that the  investigation was not conducted in the manner specified under  Section  17  of the Act.  Second was that  the  court which ordered to frame the charge had no jurisdiction to try the  case  because  no notification had  been  issued  under Section  4  of the Act.  Third was that on the merits it  is not safe to rely on the statements alleged to have been made by some of the witnesses.

     Learned  single judge of the High Court upheld all the above  three  contentions  raised  by  the  respondent   and consequently  the proceedings taken against him were quashed in full measure.

     Shri Harish Salve, learned Solicitor General of India, contended  that the High Court has grossly erred on all  the three  points and there was absolutely no necessity for  the High  Court  to  have  interfered  with  the  case  at  that preliminary  stage.   When  the trial court  has  chosen  to decide  that the accused had to be tried for the offence, he could  not understand the wisdom of the High Court in making a meticulous scrutiny of the evidence proposed to be adduced by the prosecution and to scuttle further proceedings of the trial  without  waiting  for the trial to reach  its  normal culmination.   Shri Kapil Sibal, learned senior counsel, who argued for the respondent, has fairly conceded that he could not  validly  countermand  the contentions  of  the  learned Solicitor  General  of  India in respect of  the  first  and second  points  referred  to  above, but he made  a  bid  to sustain the order on the ground that there was no sufficient materials to frame the charge.

     Learned  single judge reminded himself that public men should  have  crystal clear and transparent personality  and that  Caesars  wife must be above suspicion.  He made  a close  scrutiny of the materials and felt that there is  no option   except  to  quash   the  proceedings  against   the respondent.    However,  learned  single   judge  made   the following general observations:

     No  doubt corruption affects the normal fabric of the society.   The  citizens loose their faith in the  political leaders  who  shout that they are for the people.  No  doubt many  people  go  unpunished   although  corruption   causes considerable damage to the economy of the nation.  The roots of  corruption  are  so deep that it is an  uphill  task  to eradicate  them.   It is only possible if and only  if  each citizen   in   our  country   follows  the   philosophy   of contentment.   To  quench the thirst of greed and  lust  one must  be  drenched in shower of honesty and the fountain  of sublime  love should sprinkle the magical drops on the  eyes of  everyone  who has shut his eyes for the reality  of  the life.   Unless  one tries to find a golden key to  open  the gates  of wisdom, the heavenly life remains as a myth and we are  all making the futile effort to attain divinity in  our life.   The  public  man  should   have  crystal  clear  and transparent  personality.   Caesars  wife   must  be  above suspicion.

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     Having  been  reminded  himself of  all  such  sublime thoughts on how to eradicate the evil of corruption it would have  been  appropriate  for the High Court  to  direct  the respondent  to participate in the trial to reach its logical terminus  by  affording  him the opportunity to  explain  or account for the excess wealth projected by the investigating agency.   But learned single judge, instead of choosing that line, has chosen to scuttle the proceedings at the beginning stage  of the trial itself for which he had even upheld  the contention that the investigation was illegally conducted.

     For  arriving  at such a finding learned single  judge unfortunately  bypassed  the  factual   position  that   the investigation  was conducted by the CBI and not the  regular police  of the State.  It appears to us that learned  single judge assumed that investigation under Section 17 of the Act could  be conducted only by an officer not below the rank of Deputy   Superintendent   of  Police    whichever   be   the investigating  agency.  The reasoning of the learned  single judge on that score is this:

     One   can  understand,  if   there  is  no  mandatory provision,   it   is  left  to   the   discretion   of   the Superintendent  of  Police to assign his work  provided  the statute  permits.  But to investigate, Section 17 of the Act is mandatory in nature.  No officer below the rank of Deputy Superintendent  of  Police shall investigate the  case.   In case  if he has not carried on the investigation, there must be some order authorising the other person to go on with the investigation  in  the  case on hand.  This  is  the  patent lacuna.

     The  above  is the result of a wrong understanding  of the scope of Section 17 of the Act.  If the investigation is to  be  conducted by the CBI the legislative insistence  for the  rank  of  the officer to be not below  that  of  Deputy Superintendent of Police is given exception to.  This can be discerned  even by a reading of the Section in its entirety. We, therefore, extract Section 17 hereunder:

     17.    Persons   authorised    to   investigate.    - Notwithstanding  anything contained in the Code of  Criminal Procedure,  1973  (2 of 1974), no police officer  below  the rank,-  (a)  in  the  case  of  the  Delhi  Special   Police establishment,  of  an  Inspector  of Police;   (b)  in  the metropolitan areas of Bombay, Calcutta, Madras and Ahmedabad and  in  any other metropolitan area notified as such  under sub-section  (1)  of  section  8 of  the  Code  of  Criminal Procedure, 1973 (2 of 1974), of an Assistant Commissioner of Police;  (c) Elsewhere, of a Deputy Superintendent of Police or  a  police officer of equivalent rank, Shall  investigate any offence punishable under this Act without the order of a Metropolitan  Magistrate or a Magistrate of the first class, as  the case may be, or make any arrest therefore without  a warrant:   Provided  that if a police officer not below  the rank  of  an Inspector of Police is authoised by  the  State Government  in  this behalf by general or special order,  he may also investigate any such offence without the order of a Metropolitan  Magistrate or a Magistrate of the first class, as  the  case  may be, or make arrest  therefore  without  a warrant:   Provided  further that an offence referred to  in clause  (e)  of sub-section (1) of section 13 shall  not  be investigated without the order of a police officer not below the rank of a Superintendent of Police.

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     There is no dispute that CBI is a Delhi Special Police Establishment.   The  Superintendent of CBI,  Bangalore  has issued the following order on 21.10.1997:

     Under the provision of Section 17 of P.C.  Act, 1988, Sh.   B.   Pannir Salvem, Inspector of Police  Establishment Division,  Bangalore is hereby authorised to investigate the said  case against Sh.  S.  Bangarappa, Member of Parliament and  Former  Chief  Minister of Karnataka for  the  offences under  Section  13(2)  read with 13(1)(e) of  Prevention  of Corruption Act, 1988.

     When  there is such an order, any inspector of  police attached  to the CBI can conduct the investigation.  Learned single judge unnecessarily quoted extracts from the decision of  this Court in State of Haryana & ors.  vs.  Bhajan Lal & ors.   {1992  Supple.(1)  SCC 335} perhaps being  misled  in believing  that even when the investigation was conducted by CBI the requirement contained in clause (c) of Section 17 of the  Act  has to be followed.  The word elsewhere in  that clause  is  clear indication that the insistence for  Deputy Superintendent  of  Police can have application only  if  it does  not fall under clauses (a) and (b).  We do not wish to delve  more  into this aspect as Shri Kapil  Sibal,  learned senior  counsel for the respondent, has fairly conceded that the High Court has gone wrong on that aspect.

     Learned  single judge thereafter proceeded to consider the  contention that the court concerned had no jurisdiction to try the case.  While upholding the said contention he has stated thus:

     There  is  no notification in this case that the  XXI City  Civil  and  Sessions Judge was empowered to  try  this case.  Mr.  Tharanath, learned counsel for respondent relied upon  the  decision  popularly known as  Jayalalithas  case reported  in 1999 AIR SCW 1579.  The points involved in that case  are  entirely different from the facts of  this  case. The  very  question  of  appointing the  Special  Judge  was challenged  to  try  all  cases against  her.   The  Honble Supreme  Court has held that there is nothing wrong for  the appointment  of  Special Judge to try all the cases  as  the speedy  disposal  is  one  of the criteria.   Hence,  in  my opinion,  by  close  scrutiny of the judgment cited  by  the learned  counsel  for CBI is not applicable unless there  is notification  if any, to try such case.  Otherwise, it  will be a trial without jurisdiction.  In view of these facts and circumstances,  I  feel  that  there is some  force  in  the submission of the learned counsel for the petitioner.

     We  strongly feel that learned single judge has chosen to  uphold  the contention in a very casual  manner  without taking  into account the fall-out of such a finding on other cases  pending in that court.  Section 4(1) of the Act  says that  Notwithstanding  anything  contained in the  Code  of Criminal  Procedure, 1973, or in any other law for the  time being in force, the offences specified in sub-section (1) of Section   3  shall  be  tried   by  special  judges   only. Sub-section  (2)  enjoins on the special judge concerned  to try  every  offence  specified in Section 3(1) of  the  Act. Power  is conferred on the Central Government as well as the State Government to appoint special judges.  Such conferment can  be  discerned from Section 3(1) of the Act which  reads thus:

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     The  Central Government or the State Government  may, by  notification  in the Official Gazette, appoint  as  many special judges as may be necessary for such area or areas or for  such case or group of cases as may be specified in  the notification to try the following offences, namely:- (a) any offence  punishable under this Act;  and (b) any  conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a).

     On  13.6.1990,  the State Government of Karnataka  had issued a notification which is extracted below:

     In  exercise of the powers conferred by sub-  section (1)  of Section 3 of the Prevention of Corruption Act,  1988 (Central  Act  49  of 1988) and in partial  modification  of Notification  No.HD 192 PCR 82 dated 15/16th February, 1982, No.HD  110  PCR  82  dated  11th May,  1982  and  all  other Notification  issued  on  the  subject,  the  Government  of Karnataka  hereby  appoints the Sessions Judge specified  in col.   (2) of the table below as Special Judge for the areas specified  in the corresponding entries of Col.  (3) thereof for  the  cases  instituted  by  the  Delhi  Special  Police Establishment  in  respect of the offences specified in  the said sub- section.

     Sl.   Name  of  the Area No.   Judge  and  Designation --------------------------------------------  1.  XXI  Addl. City  Bangalore  District Civil and Sessions (including  the area  Judge.   Comprising  city  of  Bangalore  declared  as Metropolitan  area  under  the Code of  Criminal  Procedure, 1973)  and  the District of Bangalore  Rural,  Chittradurga, Kilar and Tamkur.

     Then why did the learned single judge countenance that there  was no notification empowering the XXI City Civil and Sessions Judge to try such cases?  We are greatly distressed at  the degree of superciliousness with which the contention was  dealt  with  by the learned single judge  without  even checking  up whether there was any such notification.   That apart,  if  the  High Court found that XXI  City  Civil  and Sessions  Judge,  Bangalore  is not empowered  to  try  such cases,  how  could  that be a ground to quash  the  criminal proceedings?   At  the  worst  that would  be  a  ground  to transfer  the  case  from  that court to  the  court  having jurisdiction  to  try the offence, and if no court has  been empowered till then, the criminal proceedings can be kept in abeyance   till  the  Government   issues   a   notification conferring  such  power on any other court.  Any way,  since the  court  which  ordered  framing of  charge  against  the respondent  was legally empowered to try the offence alleged against  the  respondent  it is not necessary  to  keep  the criminal  proceedings  in  abeyance so far as this  case  is concerned.   We may point out that on this aspect also  Shri Kapil  Sibal,  learned  senior counsel did not  dispute  the stand adopted by the Solicitor General of India.

     Learned  single  judge then proceeded to  discuss  the merits  of  the  evidence in this case.   He  made  detailed reference  to  the materials placed by the  prosecution  for supporting  the  charge.   When  it  was  contended  by  the Solicitor  General of India that such a detailed analysis at this stage was unwarranted Shri Kapil Sibal pointed out that even the trial court did the same thing for deciding whether

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the  charge  should be framed or not.  It is true  that  the trial  court should have avoided discussing the materials in such details when it has chosen to frame charge.  This court has stated in Kanti Bhadra Shah and anr.  vs.  State of West Bengal {2000 (1) SCC 722} that when a trial court decides to frame  charge it is not necessary to record reasons thereof. We extract the relevant observations from that decision.

     If the trial court decides to frame a charge there is no legal requirement that he should pass an order specifying the  reasons as to why he opts to do so.  Framing of  charge itself  is prima facie order that the trial judge has formed the  opinion,  upon considering the police report and  other documents and after hearing both sides, that there is ground for  presuming  that the accused has committed  the  offence concerned.   If there is no legal requirement that the  trial  court should write an order showing the  reasons for framing a charge, there is no need to further burden the already  burdened  trial courts with such extra  work.   The time  has reached to adopt all possible measures to expedite the  court procedures and to chalk out measures to avert all roadblocks causing avoidable delays.

     Learned single judge considered the statement of CW-36 (Annappa)  and  CW-37  (Puttappa)  and   a  score  of  other witnesses cited by the prosecution.  High Court then entered upon  a finding that it is not safe to rely on the statement of  some of those witnesses.  Learned single judge undertook the  said  exercise  on  the ground that  trial  court  also discussed  the prosecution case at length to reach the prima facie  finding  that the sale deeds in the names of  Annappa and  Puttappa  are  benami  transactions.   He  reached  the finding that the trial court had gone wrong in accepting the statements of the above witnesses.

     Shri Harish Salve addressed arguments to show that the purchases made by the respondent in the names of Annappa and Puttappa are all benami transactions and all such properties are  actually the properties of the respondent.  He referred to  other  materials  for supporting his  contention.   Shri Kapil  Sibal,  on the other hand, made an endeavour to  show that  those  properties cannot be counted in the account  of the respondent.

     Time  and again this Court has pointed out that at the stage  of  framing charge the court should not enter upon  a process  of evaluating the evidence by deciding its worth or credibility.   The limited exercise during that stage is  to find out whether the materials offered by the prosecution to be  adduced  as  evidence are sufficient for  the  court  to proceed  further.   (vide State of M.P.  vs.   Dr.   Krishna Chandra Saksena, [1996 (11) SCC 439].

     We  have no doubt that the materials which prosecution enumerated  are  sufficient  to  frame the  charge  for  the offence  under Section 313(2) read with Section 13(1)(e)  of the Act.

     No  doubt  the prosecution has to establish  that  the pecuniary   assets  acquired  by   the  public  servant  are disproportionately  larger than his known sources of  income and  then  it is for the public servant to account for  such excess.   The offence becomes complete on the failure of the public  servant to account or explain such excess, [vide  M. Krishna  Reddy  vs.   State Dy.  Superintendent  of  Police,

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1992(4)  SCC 45, P.  Nallammal and anr.  vs.  State, 1999(6) SCC  559].  It does not mean that the court could not  frame charge  until the public servant fails to explain the excess or  surplus  pointed out to be the wealth or assets  of  the public  servant  concerned.  This exercise can be  completed only  in  the trial.[ K.Veeraswami v.  Union of India  (1991 (3)  SCC  655;   State  of  Maharashtra  vs.   Iswar  Piraji Kalpatri  1996(1) SCC 542  In the latter decision the court held  thus:  The opportunity which is to be afforded to the delinquent   officer   under   Sec.5(1)(e)    of   the   Act [corresponding   to   Sec.13(1)(e)  of   1988  Act  of]   of satisfactorily  explaining about his assets and resources is before  the  court when the trial commences, and not  at  an earlier stage.

     For  the  above  reasons  we set  aside  the  impugned judgment  of  the High Court.  We direct the trial court  to proceed with the trial in accordance with law and to dispose it of as expeditiously as possible.