TaxTMI 
TaxTMI 
1999 (8) TMI 953
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....all those kith and kin who are now being proceeded against for the said offences in conjunction with the public servant concerned. They raised preliminary objections before the Special Courts on various grounds for pre-charge exoneration, but the Court repelled all such objections. They moved the High Court of Madras against such orders, but a learned Single Judge who heard the motions together, along with certain other petitions arising from the same prosecution proceedings, dismissed all the petitions by a common order, which is now being challenged in these appeals. Appellants have restricted their contentions, in these appeals, to the question whether they are liable to be prosecuted along with public servants for the offence under Section 109 of the Penal Code read with Section 13(1)(e) of the P.C. Act. Shri K.K. Venugopal, learned senior counsel arguing for the appellants submitted his point broadly that the offence under Section 13(1)(e) of the P.C. Act is unabettable, since the nub of the offence is the failure of the public servant to account for the excess wealth which none else can possibly do. Respondent - State of Tamil Nadu has produced a copy of the decision render....
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.... entirely on the stand adopted by any party in the lis. Thirdly, the parties must be left free to aid the court in reaching the correct construction to be placed on a statutory provision. They cannot be nailed to a position on the legal interpretation which they adopted at a particular point of time because saner thoughts can throw more light on the same subject at later stage. Before dealing with the contention advanced by the appellants we may point out that Section 4 of the P.C. Act confers exclusive jurisdiction to Special Judges appointed under the P.C. Act to try the offences specified in Section 3(1) of the P.C. Act. To understand the exclusivity of such jurisdiction it is advantageous to extract Section 4(1) of the P.C. Act as under: "Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), 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." The placement of the monosyllable "only" in the sub- section is such that the very object of the sub-section can be discerned as to e....
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....f offences defined in section 7 or 11.- Whoever abets any offence punishable under section 7 or section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine." According to the learned counsel since no other type of abetment is made specifically punishable under the P.C. Act there cannot be any question of a non-public servant abetting the offence under Section 13(1)(e) of the P.C. Act. It is true that Section 11 deals with a case of abetment of offences defined under Section 8 and section 9, and it is also true that Section 12 specifically deals with the case of abetment of offences under Sections 7 and 11. But that is no ground to hold that the P.C. Act does not contemplate abetment of any of the offences specified in Section 13 of the P.C. Act. Learned counsel focussed on Section 13(1)(e) to elaborate that by the very nature of that offence it pertains entirely to the public servant concerned as there is no role for the co-accused for discharging the burden of proof. Section 13(1)(e) reads thus: &n....
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....in 1964 by incorporating Section 5(1)(e) in the old P.C. Act. Parliament later proceeded to "consolidate and amend the law relating to prevention of corruption" and in the Bill introduced for that purpose the following was declared as per the Statement of Objects and Reasons thereof: "The prevention of Corruption Act, 1947, was amended in 1964 based on the recommendations of the Santhanam Committee. There are provisions in Chapter IX of the Indian Penal Code to deal with public servants and those who abet them by way of the criminal misconduct, there are also provisions in the Criminal Law Amendment Ordinance, 1944, to enable attachment of ill-gotten wealth. The Bill seeks to incorporate all these provision with modifications so as to make the provisions more effective in combating corruption among public servants." Thus, one of the objects of the new Act was to incorporate all the provisions to make them more effective. Section 165-A of the Penal Code read like this: "Punishment for abetment of offences defined in section 161 or....
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....There is no force in the contention that the offences under Section 13(1)(e) cannot be abetted by another person. "Abetment" is defined in Section 107 of the Penal Code as under: "107. Abetment of a thing.- A person abets the doing of a thing, who- First.- Instigates any person to do that thing; or Secondly,- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.- Intentionally aids, by any act or illegal omission, the doing of that thing." For the "First" clause (i.e. instigation) the following Explanation is added to the section: "Explanation 1.- A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing." For the "Thirdly" clause ( i.e. intentionally aids) the following Explanation is added: "Explanation 2.- Whoever, either prior to or at t....