TaxTMI 
TaxTMI 
2011 (2) TMI 1539
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..... He was accorded promotion to the rank of Head Constable in 1976, and was subsequently promoted on an ad hoc basis to the post of Inspector in 1987. His services were attached to the Hon'ble Chief Minister of Sikkim in 1987. The appellant was repatriated to his parent department, i.e. the Reserve Line, in 1994. (B) An FIR dated 5.1.1996 was registered against the appellant by the DSP, CBI (ACB) under Section 13(2) r/w Section 13(1)(e) of the PC Act 1988, alleging that the appellant was in possession of disproportionate assets to the tune of Rs. 6,46,805/- and had accumulated the same between 1987 to 1995. (C) The appellant received the office memorandum dated 5th/31st August, 1996 from the Superintendent of Police, Police Headquarters, Gangtok, directing him to give a consolidated statement of the immovable properties inherited and/or owned or acquired by him in his name or in the name of any member of his family during the period from 1987 to 1995, as per the requirements of statutory provisions in the Sikkim Government Servants Conduct Rules, 1981 (hereinafter called Rules 1981). (D) The appellant submitted the required information vide document Ex....
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....nts and it directed the Trial Court to send the file back to the High Court after completing that formality. (J) The Special Judge considered the matter in the light of the directions issued by the High Court and on an application submitted by the Special Public Prosecutor on 7.10.2002, issued summons to 12 witnesses i.e. Shri Kishore Kumar Mukhiya (PW.3), Shri P.S. Rasaily (PW.4), Shri Chandra Prakash Raya (PW.6), Shri B.K Gurung (PW.8), Shri B.K. Mukhiya (PW.9), Shri Kamal Tewari (PW.10), Shri R.K. Gupta (PW.11), Shri K. Somarajan (PW.12), Shri D.P. Deokotta (PW.15), Shri C.K. Das (PW.16), Shri Shri B.K. Trihatri (PW.23) and Shri Pallav Kenowar (PW.24) to appear before it to prove the aforesaid documents, and dates were fixed for that purpose from 25.10.2002 to 30.10.2002. (K) In spite of all this, the prosecution failed to prove the said documents as the original records of the aforesaid documents, which related to the bills of telephone and electricity expenditure aggregating to Rs. 1,04,364/-. Shri R.K. Gupta, Sr. Accounts Officer (PW.11) appeared before the Special Court and admitted that the original S.R.C. could not be produced in the court as the sa....
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....(hereinafter called Act 1947). It provides that "known sources of income" means income received from any lawful source and such receipts had been submitted by the appellant in Ext. D-4. No such requirement was there under Section 5(1)(e) of the Act, 1947 and, therefore, the start of check period from 1.4.1987 and computation of income was not based on any income derived from other lawful sources. The addition of the Explanation to Section 13(1)(e) led to a material change in the statutory requirement. The courts below failed to appreciate the submission that the PC Act 1988 was made applicable in the State of Sikkim on 12.9.1988, though in other States it had come into force earlier. The prosecution failed to make any segregation between the periods covered by the two Acts, as regards income, expenditure, savings, assets with the result that prosecution had not proved any of the said documents from 12.9.1988. Thus, the entire proceedings had been conducted in gross violation of the rights of the appellant under Article 21 of the Constitution of India. In view of the above, the appeal deserves to be allowed and judgments and orders of the courts below are liable to be set aside. ....
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.... Article 14 of the Constitution, which would by all means override the statutory provisions of the Cr.P.C. and such an irregularity is not curable nor does it fall within the ambit of Section 465 Cr.P.C. However, as the issue is being raised first time before this Court, it is not worth further consideration. More so, the aforesaid observations do not lay down law of universal application. 7. Much has been argued on the issue that investigation has been conducted without a proper order in writing, by an officer not authorised otherwise and sanction has been granted under Section 19 of the PC Act 1988 vide order dated 5.4.1997, without taking into account the assets and income shown in Ext. D-4, though the said assets represented known sources of income within the meaning of Section 13(1)(e) and the Explanation attached thereto. It has further been submitted that an invalid sanction cannot be the foundation for the prosecution and thus, the entire investigation and trial stood vitiated as the investigation without proper authorisation and invalid sanction goes to the root of the jurisdiction of the court and so the conviction cannot stand. 8. The issues raised hereinabove are ....
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....the basis of illegal investigation a proceeding may not be quashed unless miscarriage of justice is shown, but in this case as we have noticed hereinbefore, the respondent had suffered miscarriage of justice as the investigation made by PW 41 was not fair'." 11. In the instant case, the officer has mentioned in the FIR itself that he had orally been directed by the Superintendent of Police to investigate the case. It is evident from the above that the judgments in Kalpnath Rai (supra) and Surya Sankaram Karri (supra) have been decided by two Judge Benches of this Court and in the latter judgment, the earlier judgment of this Court in Kalpnath Rai (supra) has not been taken note of. Technically speaking it can be held to be per incuriam. There is nothing on record to show that the officer's statement is not factually correct. We have no occasion to decide as which of the earlier judgments is binding. It is evident that there was a direction by the Superintendent of Police to the officer concerned to investigate the case. Thus, in the facts and circumstances of the case, the issue as to whether the oral order could meet the requirement of law remains merely a technical iss....
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.... of period covered by two Acts and as to whether ratio of the judgment of this Court in State of Maharashtra v. Krishnarao Dudhappa Shinde, (2009) 4 SCC 219, runs counter to the ratio in State of Maharashtra v. Kaliar Koil Subramaniam Ramaswamy, AIR 1977 SC 2091, wherein the earlier judgment in Sajjan Singh v. State of Punjab, AIR 1964 SC 464, had been explained. 14. In view of the above, the facts and circumstances of the instant case require an examination of the case on merits. Additional Evidence: 15. Additional evidence at appellate stage is permissible, in case of a failure of justice. However, such power must be exercised sparingly and only in exceptional suitable cases where the court is satisfied that directing additional evidence would serve the interests of justice. It would depend upon the facts and circumstances of an individual case as to whether such permission should be granted having due regard to the concepts of fair play, justice and the well-being of society. Such an application for taking additional evidence must be decided objectively, just to cure the irregularity. The primary object of the provisions of Section 391 Cr.P.C. is the prevention of a gui....
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....an exception shall always have to be exercised with caution and circumspection so as to meet the ends of justice. Be it noted further that the doctrine of finality of judicial proceedings does not stand annulled or affected in any way by reason of exercise of power under Section 391 since the same avoids a de novo trial. It is not to fill up the lacuna but to subserve the ends of justice. Needless to record that on an analysis of the Civil Procedure Code, Section 391 is thus akin to Order 41, Rule 27 of the C.P. Code." (Emphasis added) 18. In view of the above, the law on the point can be summarised to the effect that additional evidence can be taken at the appellate stage in exceptional circumstances, to remove an irregularity, where the circumstances so warrant in public interest. Generally, such power is exercised to have formal proof of the documents etc. just to meet the ends of justice. However, the provisions of Section 391 Cr.P.C. cannot be pressed into service in order to fill up lacunae in the prosecution's case. 19. In Santa Singh v. State of Punjab, AIR 1956 SC 526; Tori Singh & Anr. v. State of Uttar Pradesh, AIR 1962 SC 399; and State of Rajasthan v. Bhawani....
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....prescribed" means that prescribed in accordance with law and not otherwise. Thus, in view of the above, furnishing information about assets and income etc. on a plain paper was not required as the Government failed to prescribe the said form. 23. It has been urged by the respondents that the contents of Ext.D- 4 were rightly rejected as evidence by the High Court for two reasons; (i) Ext.D-4 is not in compliance with the Rules 1981; and (ii) the statements of the defence witnesses corroborating the contents of Ext.D-4 must be discarded because they did not account for rent paid in their IT returns or show any receipts or any documents to support their statements. 24. The relevant portion of Rule 19(i)(a) of the Rules 1981 reads as under: "19(i) a government servant shall, on his first appointment to any service or post and thereafter at the close of every financial year, submit to the government return of his assets and liabilities in such form as may be prescribed by the Government giving full particulars....." (Emphasis added) 25. The contention of the respondents regarding non compliance of the Rules 1981 adversely affecting the evidentiary value of....
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....idence contained in Ext. D-4. Taking into consideration the contents of Ext. D-4, it becomes clear that the alleged unexplained income of the Appellant is only Rs. 2,71,613.64. This unexplained income is significantly lower than what had been alleged by the prosecution. It must also be borne in mind that check period had been very long and consequently, it is easily possible that a small over-estimation of the Respondent's expenditure would have been multiplied and could easily explain the said amount. Thus, the submission made on behalf of the appellant that there has been an over-estimation of his expenses, further telephone bills and electricity bills aggregating to Rs. 1,04,364.00 have not been proved before the Trial Court and even after remand by the High Court when witnesses were recalled, if accepted would mean that the alleged unexplained income is further reduced to Rs. 1,67,249.64. 28. 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 p....
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...., 75,928.05 Actual assets in possession of the appellant and his wife at the end of the check period Rs.20,38,715.45 Likely savings of appellant and his wife at the end of the check period Rs.14,54,629.81(-) Rs.12, 75,928.05 (+) Rs.15,88,400.00 = Rs. 17,67,101.76 Known assets of the appellant and his wife at the beginning of the check period Rs.34,915.00 Unexplained income of the appellant and his wife at the end of the check period Rs.20,38,715.45 (-) Rs. 1,78,701.76 (-)Rs.15,88,400.00 = Rs. 2,71,613.69 Thus, it is evident from the above table that only a sum of Rs. 2.71 lacs (approx.) remains unexplained. 31. In State of Maharashtra v. Pollonji Darabshaw Daruwalla, AIR 1988 SC 88, this Court held as under: "....on a consideration of the matter it cannot be said that there is no disproportion or even a sizeable disproportion.....There are also other possible errors in the calculations in regard to point (c). The finding becomes inescapable that the assets were in excess of the known sources of income. But on the question whether the extent of the disproportion is suc....