Prevention Of Corruption Act | Onus Is On Accused And Not On Prosecution To Account For And Explain Assets – SC

The Bench of Justice Dinesh Maheshwari and Justice J.B. Pardiwala further also touched upon the expression 'known sources of income' as referred to in Section 13(1)(e) of the 1988 Act and observed that the expression has a legal connotation which means the sources of income known to the Prosecution and not sources relied upon and known to the accused.

The Court additionally observed –

"…the expression "known source of income" is not synonymous with the words "for which the public servant cannot satisfactorily account." The two expressions connote and have different meaning, scope and requirements."

In this case, an appeal was preferred by the State of Tamil Nadu against the judgment of the Madras High Court which had allowed the criminal revision applications of the Respondents – Original Accused (Husband and Wife). The Court had discharged the accused from prosecution under Section 13(2) read with Section 13(1)(e) of the 1988 Act and Section 109 IPC.

The Respondents were husband and wife. Respondent 1 (husband) was serving as the Motor Vehicle Inspector (Grade 1). Respondent 2 (Wife) was a commerce graduate and claimed to be having a separate source of income. It was contended by the wife that she has paid her income tax and her IT returns were being scrutinized by the appropriate authorities.

An FIR was registered against Respondent 1 for the aforementioned offences under the 1988 Act. During the course of the investigation, the role of the wife also surfaced as an abettor.

Thereafter, the Respondent preferred Crl. M.P. under Section 239 CrPC seeking discharge from the trial essentially on the ground of lack of any prima facie case against them.

The Special Judge adjudicated both applications and rejected the same. The Judge recorded a categorical finding that there was more than a prima facie case against the accused persons to put them to trial for the alleged offence. The Judge also held that the charges leveled against the accused persons cannot be said to be groundless so as to discharge them from the prosecution in the exercise of powers under Section 239 of the CrPC.

Aggrieved, the Respondents approached the High Court by filing Criminal Revision Applications which came to be allowed by the Court.

AAG V. Krishnamurthy appeared for the State while Senior Counsel K. Radhakrishnan appeared for the accused before the Supreme Court.

The issue which was dealt with by the Court was –

• Whether the High Court committed any error in discharging both the accused from the charges leveled against them.

The Apex Court noted that the impugned orders passed by the High Court were utterly incomprehensible.

The Court gave its detailed reasoning for holding so.

The Court referred to Section 13(1)(e) of the 1988 Act which deals with Criminal misconduct by Public Servant.

"13. Criminal misconduct by a public servant. (1) A public servant is said to commit the offence of criminal misconduct- (e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the 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."

The Bench noted that the first para of the Section states that the known sources of income mean the income received from any 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.

The Court further noted that the second para of the explanation defines 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.

In this context, the Court thus held –

"…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 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."

Furthermore, the Bench added, "While the expression "known sources of income" refers to 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."

While holding that the explanation to Section 13(1)(e) is a procedural section that seeks to define the expression "known sources of income" to the Prosecution and not the accused, the Court observed –

"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 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."

While for the second part of the explanation, the Court noted that it 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 known sources of income of an accused who is investigated under the PC Act, 1988.

The Bench referred to the decisions of Central Bureau of Investigation (CBI) and Anr. v. Thommandru Hannah Vijayalakshmi @ T.H. Vijayalakshmi and Anr and also K. Veeraswami v. Union of India, where it was 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 cannot be granted to the accused before the filing of an FIR by making a preliminary inquiry mandatory.

The Bench further also held that the High Court has not been able to comprehend the true scope and ambit of 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.

The Court agreed to the contention of the State 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 case there cannot be said to be any material error or illegality in the orders assailed before the High Court.

The Court held that the impugned orders passed by the High Court were 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 in the alleged offence," the Bench held.

Thus, the Court allowed the appeals and set aside the impugned orders passed by the High Court discharging the accused persons from the prosecution.

Cause Title - State Through Deputy Superintendent of Police v. R. Soundirarasu Etc.

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