Babappa vs State

Subhash B. Adi, J.—This appeal is against the judgment of conviction by the learned Sessions Judge, Special Court, Gulbarga, in Special Case No. 73 of 1996, dated 8-8-2003.

Prosecution case as unfolded is that, the accused was charge-sheeted for an offence punishable u/s 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short, ''the Act''), inter alia alleging that accused being a Government servant found in possession of assets disproportionate to his known source of income and in the name of his family members and same is not satisfactorily accounted.

After hearing the prosecutor and the learned Counsel for the accused, charges were framed and were read over to the accused in the language known to him. Accused pleaded not guilty and claimed to be tried. Prosecution to prove its case, examined P.Ws. 1 to 31 and marked Exhibits P. 1 to P. 98. On the other hand, the accused led evidence of D.Ws. 1 to 6. No documents were marked in the defence evidence.

The Special Court placing reliance on the evidence lead by the prosecution and the documents produced by it, held that the prosecution has proved the charges beyond reasonable doubt by holding that the accused was found in possession of assets disproportionate to his known source of income and sentenced the accused to undergo three years rigorous imprisonment for an offence punishable u/s 13(1)(e) read with Section 13(2) of the Act and the fine of Rs. 10,000/- in default to undergo simple imprisonment for 6 months. It is this judgment of conviction is called in question by the accused in this appeal.

Sri Shankar Hegde, learned Counsel appearing for the accused, submitted that the judgment of conviction is not sustainable mainly on four grounds:

(i) That for the purpose of investigating of an offence punishable u/s 13(1)(e) of the Act, an order of the Police Officer not below the rank of Superintendent of Police is necessary u/s 17, second proviso and in this case, prosecution has not produced any document to prove the same.

(ii) That the order of sanction granted u/s 19 of the Act is one without application of mind. Sanctioning authority except referring to a report had not looked into the records of the prosecution, and that the records of the prosecution were not at all placed before the sanctioning authority, and in view of the absence of application of mind, granting sanction has prejudicially affected the case of the accused, as such the sanction is void in law and the prosecution based on such sanction is illegal.

(iii) That the object of recording the statement of accused u/s 313 of the Criminal Procedure Code, 1973 is to make it known to the accused as regard to the evidence and material against him so that the accused would have an opportunity to explain. However, the Court has not framed specific questions and in turn the Court has clubbed several aspects into one and has put complicated questions, which is not only confusing, but suffers from clarity, does not indicate as to what is the question for which the accused was to explain, and as such same has resulted in failure of justice to the accused, and it has prejudicially affected the case of the accused, and further has resulted in denial of an opportunity to the accused to explain his defence.

(iv) That, the evidence laid by the prosecution itself discloses the source of income and the prosecution witnesses have stated in their evidence that the assets found in possession of the accused and his family are well-accounted and have given satisfactory explanation as regard to the assets found in possession of the accused and his family. He further submitted even taking the evidence of the prosecution as it, without even cross-examination or challenge, it will not prove the charge of disproportionate assets to the known source of income.

Regarding Point No. 1.-Section 17 which reads as under:

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 authorised by the State Government in this behalf by general or special order, he may also investigate any such offence without the order of the 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.

In support of his contention he relied on the provision of Section 17 of the Act and submitted that, no officer below the rank of Deputy Superintendent of Police or a Police Officer of equivalent rank shall investigate any offence punishable under the provisions of the Act without the order of a Metropolitan Magistrate or a Magistrate of the first class as the case may be. However, insofar as the offence punishable u/s 13(1)(e) of the Act is concerned, by proviso, the legislation has made it mandatory that no investigation shall be made without the order of the Police Officer not below the rank of the Superintendent of Police. To substantiate the same, he relied on the evidence led by the prosecution and submitted that P.W. 30 is an Investigating Officer who was working as Deputy Superintendent of Police between October 1955 to June 1998 and P.W. 31 is an another Investigating Officer who conducted investigation prior to the investigation taken over by P.W. 30 and he has not stated as regards to the order passed by the Police Officer not below the rank of Superintendent of Police, authorising him to investigate the matter. He further submitted that, the legislation in order to keep a check on frivolous complaints and the investigation, has imposed a restriction on investigation without the order of the officer not less than the Superintendent of Police and this requirement is not a hallow formality but requirement of law. None of the Investigating Officer examined before the Court nor any other witness has either stated as to the order passed by the Officer u/s 17 of the Act or has produced any evidence proving the grant of such permission.

In support of his contention he relied on a judgment reported in the matter of State Inspector of Police Vs. Surya Sankaram Karri, and submitted that the Apex Court considering the provisions of Section 17 of the Act has observed that Section 17 contains a non obstante clause. It makes investigation only by a Police Officer of the ranks specified therein to be imperative in character. In case of investigation in respect of offence punishable u/s 13(1)(e) of the Act, it shall not be investigated without the order of the Police Officer not below the rank of Superintendent of Police and the Apex Court considering the fact that the witness examined by the prosecution did not produce any order to show that the officer had been authorised, held that ''shall'' occurring in proviso is mandatory in character and held that when a person who is not authorised to investigate and if there is no authorisation in law, investigation would be one without jurisdiction and the judgment of acquittal was confirmed by the Apex Court.

In this regard he submitted that P.W. 31 conducted part investigation and P.W. 30 the remaining part of the investigation. P.W. 31 also refers that since he was transferred, the further investigation was handed over to another officer on 25-1-1995. Relying on the evidence of these witnesses, he further submitted that, none of the witnesses state as regards to the order passed, authorising investigation and apart from these Investigating Officers, one another officer has also investigated the matter, it is not known whether there was any order authorising him to investigate. In the absence of the order to investigate, the entire investigation by the police would be one without jurisdiction and prosecution based on the same does not survive.

As regards to Point No. 2 he relied on Ex. P. 77 and evidence of P.W. 27. Ex. P. 77 is an order of sanction to prosecute u/s 19 of the Act, issued by the Chief Engineer (Elec), G.M., Kaveri Bhavan, Bangalore. Referring to this document, he submitted that the sanctioning authority had not referred to any of material collected by the prosecution nor there is any reference as to whether the Investigating Officer had placed the material before the sanctioning authority. It only refers that, the Deputy Superintendent of Police, Karnataka Lokayukta has submitted source of report dated 7-11-1994 to the Chief Office with a request to accord permission to register the case for the offence punishable u/s 13(1)(e) read with Section 13(2) of the Act against the accused, and refers to the assets acquired between February 1973 to November 1994 and the statement of the expenditure and the assets at Rs. 5,34,307/- without mentioning as to on what basis these figures are mentioned and what were the materials placed before the authority.

In this regard, he submitted that, by the time the sanction is sought u/s 19 of the Act, the Investigation Officer had collected the material for the purpose of seeking sanction. The object behind seeking sanction was to place the material before the sanctioning authority, so as to enable the sanctioning authority to find, as to whether there is prima facie material for prosecution. Sanction u/s 19(1) of the Act is not automatic but is based on application of mind. He further submitted that even charge-sheet cannot be filed before the sanction is obtained. Provisions of Section 19 of the Act makes it clear that sanction is necessary not only to file charge-sheet, but to know as to whether the material collected by the police is satisfactorily, to warrant the sanction.

To support his contention he relied on a judgment of the Apex Court in the matter of State of Karnataka Vs. Ameer Jan, and submitted that an order of sanction without considering the record except the purported report, the Apex Court has held that, it would be no sanction in the eye of law. He submitted that the Apex Court in the said judgment considered the earlier judgment in the case of Parkash Singh Badal and Another Vs. State of Punjab and Others, and has observed that, Parkash Singh Badal''s case is not an authority for proposition that even when an order of sanction is held to be wholly invalid inter alia on the premise that the order is a nullity having been suffering from the vice of total non-application of mind and the said decision cannot be said to have any application to the Ameer Jan''s case. He further relied on a judgment of this Court in the matter of State of Karnataka v. D. Gurunath Criminal Appeal No. 660 of 2002, dated 5-2-2008 and submitted that this Court following the decision in Ameer Jan''s case has held that, there should be application of mind on the part of the sanctioning authority and the same is imperative. The order granting sanction must be demonstrative of the fact that there has been proper application of mind on the part of the sanctioning authority. He also relied on another judgment of this Court in The State of Karnataka Vs. A.V. Sathish, Forester Agrahara Range, referring to para 11 submitted that sanction without even placing the records before the sanctioning authority and based on only report is no sanction in the eye of law.

He referred to the evidence of P.W. 29 and submitted that P.W. 29 was working as Chief Engineer-Electrical (Gen.), KEB, Bangalore, when the accused was working as Store Keeper in Electricity Department and on 9-8-1996, he received the requisition letter from the Director General, Karnataka Lokayukta to issue authorisation to prosecute the accused and he issued sanction as per Ex. P. 77. He submitted that even P.W. 29 only refers to the final report of the Investigating Officer-Lokayukta and does not refer to any of the documents or material. Relying on Ex. P. 77 and evidence of P.Ws. 29 and 31, he submitted that, except the report, no other documents were produced nor, the letter addressed to P.W. 29 for sanction is produced to establish as to whether all the material collected by the Investigating Officer were placed before the sanctioning authority or not. In the absence of such material being placed before the sanctioning authority and in the absence of the sanctioning authority applying its mind before sanctioning, the prosecution, based on such sanction is per se illegal and void and the prosecution based on such sanction suffers from the vices of illegality.

As regards to provisions of Section 19(3) of the Act, learned Counsel submitted that, when the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice, the Court shall have the power having regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. It is in this regard, he submitted that, if the sanctioning authority had an occasion to look into the material collected by the police, it might not have granted sanction. During the course of the investigation, the Investigating Authority recorded the statements of several persons and collected the material and the statements of such persons disclose the source of the income for acquisition of the property and all such materials though was with the Investigating Authority, but was not placed before the sanctioning authority and the sanctioning authority granting sanction without having the benefit of such materials has sanctioned the prosecution, which has prejudicially affected the interest of the accused and resulted in failure of justice. In this regard, he submitted that, once the Court finds that the sanctioning authority has not applied its mind and has granted sanction mechanically without looking into the record, prosecution based on such sanction would amount to failure of justice and the Court has power to reverse the findings of the special Court.

Referring to provisions of Section 19(3) and (4) of the Act, he submitted that, the interpretation of these provisions would only show that sanctioning is must and any sanction which is given without application of mind, and without considering the documents and material, it is no sanction in the eye of law and amounts to failure of justice. In this regard, he again referred to the decision in Ameer Jan''s case and pointed out that the Apex Court had considered the decision in Parkash Singh Badal''s case where the Apex Court had observed that the plea of irregular sanction to be raised at appropriate stage. The said view was not accepted by the Apex Court at para 13 of Ameer Jan''s case. He also submitted that the object behind the provisions of Section 19 of the Act is to curb frivolous prosecution based on no material and to save the public time and also save harassment to a Government employee.

To substantiate his contention as to how the sanction has resulted in failure of justice, he relied on the statements of the wife of the accused, goldsmith, sister of the accused, father-in-law, mother-in-law of the accused, contractor whose statements were recorded by the Investigating Officer. Each one of them in their statements before the Investigating Officer have stated the source of acquisition of the property, gold and the said material did give the proper accounting for the alleged assets of the accused and his family. He also submitted that during the period for which allegation of acquisition assets disproportionate to known source of income is alleged, there was no rule required for the KEB employee to declare his assets. Since these materials were not before the sanctioning authority and only report was before the sanctioning authority, the sanctioning authority without having the benefit of the records has mechanically granted sanction. To support this, again, he relied on the evidence of P.W. 31 who has stated that he has only sent the report to the sanctioning authority and on receipt of the report, he filed a charge-sheet showing the known source of income and disproportionate assets. Relying on the said evidence, he further submitted that this makes abundantly clear that nothing was sent to the sanctioning authority and only report was placed before it, and even estimation of income, assets and disproportionate assets was calculated after the sanction.

In regard to Point No. III, he submitted that, the question to be framed for recording the statement of accused u/s 313 of the Cr. P.C., must be simple, specific, clear and understandable and clumsy, complicated and confusing questions should be avoided. He referred to question Nos. 6, 14, 17, 18, 29, 30 and 31 and pointed out that, the learned Trial Judge at question Nos. 29 and 30 mixed up the investigation, permission to prosecute, registration of case, conduct of raid, preparation of mahazar in respect of bank accounts, gold ornaments, movable properties of the accused and accused family. There is no specific question in respect to which the accused could give his explanation nor it indicates as to what the learned Trial Judge really wanted from the accused. Similarly, he also submitted that, the entire evidence of P.W. 31, who conducted part of investigation, is culled out in one question referring to several documents and a question is asked as to what the accused has to say. He further referred to question Nos. 15 and 16 as regards to the entire evidence of P.Ws. 17 and 18 and documents Exs. P. 48 and P. 49. He pointed out that, Ex. P. 47 contains particulars of different accounts. There is no specific question or suggestion in respect of which account the question was asked. It is also submitted that, the learned Trial Judge has gone on asking questions on the basis of evidence of individual witnesses, who have referred to several documents and not on the basis of the evidence which is against the accused or any incriminating statement in the evidence. He further submitted that object of Section 313 of the Cr. P.C. is to give an opportunity to the accused to explain as regard to the incriminating statement in the evidence of prosecution, and in this regard the Trial Court must frame questions in such a way that the accused would be in a position to understand the same easily and give his explanation.

In support of his contention, he relied on the decision in the case of Ajay Singh Vs. State of Maharashtra, , and submitted that the Supreme Court has held that the object of Section 313 of the Cr. P.C. is: examination of an accused is to give an opportunity to explain the case made against him, he must be questioned separately about each material substance which is intended to be used against him, questions must be posed in a form which even an illiterate person will be able to appreciate and understand, the question should not relate to whole case generally and should not also be limited to any part or parts, question to be framed in such a way so as to enable the accused to know as to what he has to explain, what are the circumstances which are against him and for which an explanation is needed. The object is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and such question must be fair and must be posed in a form which an ignorant or illiterate person will be able to appreciate and understand. The Apex Court observes that a conviction based on the accused''s failure to explain what he was never asked to explain is bad in law.

Learned Counsel submitted that, the learned Trial Judge while considering the statement of the accused u/s 313 of the Cr. P.C. observed at para 59, that the accused has pleaded the ignorance and has denied the suggestions made u/s 313 of the Cr. P.C. and there by the accused has admitted the allegation. He also pointed out at Question No. 31, the disproportionate assets is calculated at Rs. 4,25,571/- whereas the case of the prosecution is that accused was having disproportionate assets to the known source of income worth Rs. 5,24,367/-. As per the charge-sheet filed by the Investigating Officer, referring to questions put to the accused he submitted that, accused was not given clear picture of the prosecution case nor given the clear figure of disproportionate assets to the known source of income and same has resulted in conviction of the accused.

Re: Point No. 4.-He submitted that, P.W. 28 is a contractor who has been examined by the prosecution. In his examination-in-chief, on the suggestion made by the prosecutor, has stated that, he paid Rs. 16,500/- to accused in the year 1991 and Rs. 42,500/- in the year 1994 and an amount of Rs. 60,000/- and Rs. 65,000/- between 1992-94 to the wife of the accused Smt. Mahadevi by way of loan, his statement was also recorded by the I.O. as C.W. 58 as their witness and there is no contraction in the statement given before the police and the evidence given before the Court. He referred to the evidence P.W. 15-Shobha, sister-in-law of the accused, who has stated that, she had given 13 tolas of gold which included three year sara, jumuki, bendole, two patli and one necklace as she was residing in a village and for the purpose of safety they were kept with the wife of the accused who was having locker in her name in the Bank when the raid was made by the Lokayukta police, her ornaments were also seized. She has also stated that, she has given an application to the Lokayukta Police for the return of the said gold ornaments. He also relied on the evidence of P.W. 22 who was running a Finance at Chittapur, and he has stated that, wife of the accused and the accused were having 10 shares worth of Rs. 5,000/- each and he has furnished the details as per Ex. P. 56. In the cross-examination, he has stated that for two years, as an incentive 10 gms. of gold was given to each of the shareholders. He further submitted that, P.W. 4-Meri Margaret has stated she had kept her gold with the wife of the accused for safety purpose. Her marriage took place in the year 1991 with Dr. Babu Jadhav, and during 1991, her husband was studying Final Year M.B.B.S. and she was working as staff nurse, and at that time, they were residing in Mahavir Nagar, Gulbarga and her husband had gone to Hubli for studies and the house is to be locked and for safety, she had kept gold ornaments with the accused wife and in this regard, she has given a statement before the police that, she was examined by the police and she has also stated that she has also given an application for return of gold ornaments. Further, he relied on the evidence of D.W. 4-elder sister of the accused. D.W. 3-mother of the accused wife, P.W. 14-father-in-law of the accused who has also stated that the sister of the accused had given 20 tolas of gold, mother of the accused wife had given 15 tolas of gold and father-in-law of the accused- P.W. 14 had given 20 tolas of gold in addition to this P.W. 25-the wife of the accused has stated that she had received 60 tolas of gold, 40 tolas of silver and gift articles at the time of marriage, and she has explained as to how she purchased 8 acres of land at Madarki in the year 1980 worth of Rs. 9,000/- and 3 1/2 acres for Rs. 4,500/- and one site in the year 1983 worth of Rs. 6,500/- in another site worth of Rs. 11,000/- and during the year 1983-84, she constructed a house for which her father had also given loan of Rs. 40,000/-. In the year 1992, she had sold the site and gold ornaments and thereafter she purchased a site at Bangalore for Rs. 1,00,000/-. She has also stated that after construction, she has given the building on a monthly rent for Rs. 1,000/- and Rs. 1,200/-. He submitted that, these witnesses are examined by the prosecution and suggestions are also made in the examination-in-chief and no suggestion is made by prosecution as regards to their source of income. He also submitted that though P.W. 23-Financial Valuer has valued the building at Rs. 3,00,960/- but basis of the valuation is not explained and the learned Judge has not accepted the said evidence and in turn at para 29, he has observed that the value may be not less than Rs. 2,50,000/-. However, having found that the building is valued at Rs. 2,50,000/-, same was not considered for the purpose of total valuation of the assets, in turn taking the valuation as made by the official valuer has passed the judgment.

Learned Counsel also relied on the evidence of P.W. 26-Assistant Statistical Officer, who assessed the income from the agricultural land based on the national survey report. The said survey report is for the year 1996 whereas in the cross-examination he has admitted that if the accused had received the food articles from his agricultural lands, he would be entitled for 376 less points. Referring to this witness, he submitted that even if it is calculated, Rs. 30,000/- is required to be deducted from the total valuation of the assets. He also refers to the evidence of P.W. 30-investigating Officer, who investigated the matter, who in the cross-examination, has stated that the valuation of the property as per A to J and the valuation of the articles, are made on the basis of the valuation made by the panch''s and there are no vouchers and receipts for the same. He submitted that, there are no direct evidence as regard to the valuation, the Investigating Officer relied on the evidence of panch. However, the panch is examined as P.W. 1, he has denied that he was asked to give the valuation of the items and admitted that the valuation of such item was written by the Lokayukta Police itself. Referring to this evidence, he submitted that, the valuation of the property was not made by the expert nor made by panch but the Lokayukta police on their own have assessed the valuation of the articles. He also relied on P.W. 2-another panch witness, who in he cross-examination has admitted that valuation of each item was told by the Deputy Superintendent of Police and in the cross-examination has admitted that goldsmith and the Deputy Superintendent of Police mutually valued the gold ornaments. According to the Trial Court, the gold ornaments were valued at Rs. 1,54,0007- and that was the question put to the accused in Section 313 statement.

He submitted that P.Ws. 14, 15, 24, 25, D.W. 4, 22 and 23 have all spoken about the gold ornaments belonging to them, and the said evidence is not challenged by the prosecution nor they were treated hostile, in fact that was the statement even before the Investigating Officer.

He further submitted that, as per Section 313 of the Cr. P.C. statement, the extent of disproportionate asset alleged is Rs. 5,24,266/- and if the assets stated by the witnesses is considered, such as, P.W. 28 himself has stated that he had paid Rs. 1,84,000/- which was received by P.W. 25 and the accused and in case of calculation of assets disproportionate to the known source of income, there would be a variation of 10%, if that is taken at Rs. 52,000/- admittedly, there is duplication to the tune of Rs. 46,950/-. So far as rent is concerned, tenants have been examined, the collection of rent for the relevant period comes to Rs. 42,000/-. Tenants have been examined as P.W. 8 and who has stated he is paying Rs. 500/- p.m. and he is tenant from 1985-90 and P.W. 13, another tenant has also stated that he is paying 500/- rent from 1989 to 1996-97. If this income is taken, then it comes to Rs. 42,000/-. If that is added to the known source and the difference of food items i.e., food grains received from agricultural lands is added it would work out at Rs. 32,000/-. It is submitted that without even referring to the gold ornaments, even then the asset alleged to be disproportionate to the known source has no basis as these income cannot be disputed, even these income is added to the known source, there would be no disproportionate assets to the known source of income. By relying on the evidence of these witnesses and documents, he submitted that investigation is made by Lokayukta police. They have collected these material and the witnesses are also examined by the prosecution. The questions and suggestions are put in examination-in-chief by the prosecution and all are the prosecution witnesses, who have stated as regards to the legitimate source of income for the assets. Even if the Court want to find out the disproportionate assets to the known source of income, the prosecution has not elicited anything in evidence to prove its case.

Prosecution itself has accepted the said evidence and in totality of evidence, it shows the existence of the known source and if it is considered, it would not become the assets disproportionate to the known source of income. He further pointed out that, though the evidence of these witnesses are referred by the Special Judge but has not appreciated the same and has also not considered the corresponding documentary evidence produced by these witnesses and thereby the learned Special Judge has committed an error in convicting the accused for the offences punishable u/s 13(1)(e) read with Section 13(2) of the Act. He also pointed out that, the learned Special Judge having found that the valuation of the building would not be less than Rs. 2,50,000/- as against Rs. 3,00,000/-. The difference of Rs. 50,000/- was also not considered. The non-consideration of the material evidence on record and erroneously appreciating evidence has resulted in conviction of the accused.

Sri Vijaykumar, learned Counsel for the Prosecutor for the Lokayukta, on the other hand, submitted that u/s 19, sanctioning authority being an appointing authority of the accused, has given a sanction and there is no illegality in the sanction order. He submitted that absence of sanction, irregularity, illegality, erroneous sanction, if any, have to be urged at the initial stage and the accused has not taken such a defence before the Trial Court and after having suffered conviction, it is now not open to the accused to raise the plea of the defective sanction or invalid sanction. He relied upon the provisions of Section 19(3) of the Act and submitted that there is a blanket bar on the Court to reverse the judgment of conviction either on the ground of absence of sanction or irregularity or illegality in sanction. He also submitted that, even otherwise the sanctioning authority in its order has referred to the report, investigation, disproportionate asset to the known source of income and thereafter, on consideration has accorded sanction. Just because the documents are not specifically mentioned or referred, it does not vitiate the sanction itself. He further submitted that, the sanctioning authority has referred to the report of the Investigating Authority and as such, it amounts to consideration of material before sanctioning the prosecution.

As regards to the permission of the officer not below the rank of Superintendent of Police in terms of Section 17 of the Act for investigation is concerned, though such order is not produced, fact that the investigation is conducted by the officer competent under the Act, presupposes that such an order has been issued. Non-production of the order will not have any impact on the investigation, particularly at the stage of appeal.

As regards to the questions put to the accused u/s 313 of the Cr. P.C., if the accused understands the questions and answers affectively, it cannot be assumed that the question was complicated or was not clear and clumsy. He referred to the answers given by the accused in Section 313 of the Cr. P.C. examination and submitted that accused in clear term has admitted what is suggested in Section 313 of the Cr. P.C. examination. As such, neither it has prejudiced the interest of the accused nor it has resulted in failure of justice and only on that ground, the judgment of conviction cannot be questioned.

Insofar as assets disproportionate to the known source of income is concerned, he submitted that, no doubt the initial burden is on the prosecution to show that the assets of the accused is disproportionate to the known source of income. But, once it is shown, then the burden shifts on the accused to prove that he had known source of income. To prove that the asset was disproportionate to the known source of income, the prosecution has placed the material such as seizure of gold, documents of assets, bank accounts, properties and all these articles and the documents have been valued and their valuation and the known source of income was taken into account and it is thereafter, it was calculated and found that, the assets are disproportionate to the known source of income and to this extent, the prosecution has proved its case and once it is proved, it is the accused, who has to show that he had known source of income.

In this regard, he relied on the judgment in the matter of State of Madhya Pradesh Vs. Awadh Kishore Gupta and Others, and submitted that the legislation has advisedly used the expression ''satisfactorily'' account''. The emphasise must be on the word ''satisfactorily and legislation has thus, deliberately cast a burden on the accused not only to offer a plausible explanation to prove that the acquisition of assets with known source of income but also to satisfy the Court that his explanation was worthy of acceptance. Referring to the words "known source" and "satisfactory account" he further submitted that, there must be plausible explanation, acceptable to the Court to prove that such assets are satisfactorily accounted and from the evidence on record it does not show that the accused has discharged his burden of proving that the assets are not disproportionate to the known source of income.

It is in this context he also referred to another decision of the Apex Court in the matter of Rameshwar Prasad Upadhyaya Vs. The State of Bihar, and submitted that the Apex Court interpreting Section 5(3) of the old Act (repealed) has observed that, person to account satisfactorily the acquisition of properties and pecuniary sources held or possessed by him that, onus may not be as strict as initial onus on the prosecution which has to establish the disproportion between the property held by the accused and the known sources of his income. But where from the facts the disproportion was not satisfactorily explained, it could not be said that the excessive burden was thrown on the accused to explain disproportion. In this regard, he referred to the evidence and submitted that accused joined services in 1973 and raid was conducted in 1994. The period in between was 20 years. At the time of joining service, the accused had only 6 acres of land and in 1976 he married. His wife was employed only for one year and was drawing salary less than Rs. 300/-. If this evidence is considered and his total income for 21 years is calculated, as against the asset, the asset becomes disproportionate to the known source of income and if this fact is shown, the prosecution discharges its burden of proving the same and it is for the accused to lead evidence and prove that the assets are not disproportionate.

He further relied on another decision in the matter of Sailendranath Bose v. State of Bihar AIR 1968 SC 1292 : 1968 Cri. L.J. 1484 (SC) and submitted that the investigation by an officer below the rank of Superintendent of Police does not vitiate the jurisdiction of the Court or the trial, unless prejudice is shown by the accused. Referring to the said decision, he further contended that, though there is no reference to the permission to investigate, but perusal of the records shows that, the investigation is done by proper officer.

As regards to the questions put by the Court to the accused in Section 313 of the Cr. P.C. statement, he submitted that, long questions are put to the accused in the examination u/s 313 of the Cr. P.C. is not the ground to vitiate the trial itself. He further submitted that investigation means all the proceedings conducted by police for collection of evidence. He also submitted that, in case of prosecution for offence punishable under the provisions of the Act, the standard of proof is not on par with any other crime in Indian Penal Code. All that is required is that, the prosecution must show that the acquisition of assets by the accused in disproportionate to the known source of income. He also relied on the evidence of the witness and submitted that these witnesses are examined only to show that the accused possessed of assets, and the learned Special Judge having considered the evidence in its entirety and the material on record has rightly convicted the accused.

In the light of the rival contentions, the following points arise for consideration:

Whether the sanction is in accordance with the requirements of provisions of Section 19 of the Prevention of Corruption Act?

Whether the investigation is vitiated for want of authorisation u/s 17 of the Act?

Whether examination of the accused u/s 313 of the Cr. P.C. is proper?

Whether the prosecution has proved the offence punishable u/s 13(1)(e) of the Act read with Section 13(2) of the Act?

Point No. 1.-Prosecution in order to prove proper sanction in terms of Section 19 of the Act has examined P.Ws. 29 and 30. P.W. 30 is an Investigating Officer who investigated the matter from 2-11-1995. In his evidence, he states that, he recorded the statements of witnesses and on 29-6-1996, submitted the investigation report to the Director General of Lokayukta, Bangalore, with a request to get sanction order to prosecute the accused, and on 15-10-1996, he received the sanction order, thereafter he worked out about the income, assets and expenditure and found that the total income of the accused during his entire service is to the tune of Rs. 15,17,533/- and the total assets of the accused was to the tune of Rs. 15,16,329/- and the total value of the assets and the expenditure during the relevant period is to the tune of Rs. 20,41,900/-. The difference was Rs. 5,24,367/- i.e., the amount alleged to be excess of wealth to known source of income of the accused and he prepared a charge-sheet and presented to Lokayukta and Public Prosecutor. P.W. 2 is the sanctioning authority. In his evidence, he has stated that he was working as a Chief Engineer in Electrical General, KEB, Kaveri Bhavan, Bangalore, between 1994-97 and on 9-8-1996, he received a letter from the Director General of Bureau, Karnataka Lokayukta, Bangalore, for sanction to prosecute the accused. He after verifying the final report of the Investigating Officer has issued the sanction letter as per Ex. P. 77 and was satisfied that the accused required to be prosecuted and granted sanction to prosecute the accused.

Ex. P. 77 is an order of sanction wherein it refers the source of report dated 7-11-1994 and also refers the income, assets excess to known source of income on the basis of search dated 11-11-1994. According to P.W. 30, he had sent the report on 29-6-1996 and had not prepared the final report he worked out the income, assets and expenditure only after he received sanction on 15-10-1996. Neither P.W. 30 states that he had placed all the material and records before the sanctioning authority nor P.W. 29-the sanctioning authority stated that he had received all the materials nor Ex. P. 77 shows that receipt of records along with investigation report dated 29-6-1996 in turn what is referred in the sanction order is a source report submitted by the Deputy Superintendent of Police, Lokayukta on 7-11-1994 which was for registering the case u/s 13(1)(e) read with Section 13(2) of the Act and permission was accorded on 8-11-1994 to investigate the matter. There is no reference as regard to the investigating report along with material placed before the sanctioning authority nor the sanctioning authority states that he has perused the records placed before him. P.W. 30-Investigating Officer states that he worked out income, assets and expenditure only after he received the sanction i.e., after 15-10-1996 but, the sanctioning authority refers to a search made by the police dated 11-11-1994. Except this, there is no other material produced by the prosecution to evidence that the sanctioning authority, in fact, had all the material before it or the Investigating Officer had placed all the records what is referred to by the Investigating Officer is a report and what is referred to by the sanctioning authority is a letter dated 9-8-1996 and it is not known as to what is the letter dated 9-8-1996, no such letter or document is produced by the prosecution.

Whether this evidence on record will fulfill the requirements of Section 19 of the Act or not is required to be considered. To appreciate this, it is useful to refer to the provisions of Section 19 of the Act, which reads as under:

Previous sanction necessary for prosecution.-(1) No Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction:

(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;

(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office.

(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under Sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.

(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974):

(a) no finding, sentence or order passed by a Special Judge shall be reversed or altered by a Court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under Sub-section (1), unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby;

(b) no Court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;

(c) no Court shall stay the proceedings under this Act on any other ground and no Court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.

(4) In determining under Sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the Court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings.

Section 19(1) bars the Court to take cognizance of the offence punishable under Sections 7, 10, 11, 13 and 15 of the Act except with previous sanction from the Competent Authority stipulated specified u/s 19(1)(a) to (c). However, Section 19(3) notwithstanding anything contained in Code of Criminal Procedure, no finding, sentence or order by Special Judge shall be reversed or altered by the Court in appeal, confirming or reversing on the ground of absence or any error or omission or irregularity in sanction required u/s 19(1) unless in the opinion of the Court, that such an irregularity or absence or omission has resulted in failure of justice. Sub-section (4) of Section 19 of the Act deals with, as to what constitutes the failure of justice. While considering the same, the Court shall have to regard as to whether objection could and should have been raised at the earlier stage of the proceedings. From Section 19(3) and (4) what emerges is:

(i) There must be failure of justice.

(ii) Whether objection could and should have been raised at the earliest stage of the proceedings.

In order to show the failure of justice, learned Counsel for the appellant had relied on the statements recorded by the Investigation Officer during the course of investigation and submitted that, P.W. 8 and P.W 13 are the tenants residing in the premises belonging to the accused. P.Ws. 8 and 13 each were paying rent of Rs. 500/- per month and they were staying from 1988 to 1990 and 1989 to 1997 respectively. They were examined by the Police as C.Ws. 25 to 30. He also submitted that, P.W. 14 is father-in-law of the accused and he is also examined as C.W. 50. He has stated that, he had given land measuring 8 acres 9 guntas to his daughter, 5 tolas of gold and he had kept about 24 tolas of gold with her for safety. P.W. 50 is examined as C.W. 54 who is a sister of the accused wife and she has stated that, she had kept gold ornaments weighing 13 tolas with the accused wife in her locker for safety and she has given details of the ornaments belonging to her and she had made an application for return of the gold ornaments. He also relied on the evidence of P.W. 22 who was examined by police as C.W. 34 and he has stated that, both accused and his wife have purchased 10 shares each and each share worth Rs. 5,000/-. As against the purchase of said shares, he had given each 10 grams gold every year for two years i.e., in all 40 grams of gold as an incentive. C.W. 24 sister-in-law of the accused wife who has stated that in the year 1991 her husband was studying final year M.B.B.S. and she was working as staff nurse in Civil Hospital. As accused wife was having locker, she had kept her ornaments with accused wife for safety purpose. P.W. 25 was examined by the Police as C.W. 59, she is a wife of the accused and she has stated that, she had brought about 60 tolas of gold and 40 tolas of silver from her parents at the time of marriage and she was working as a teacher in a convent school with a salary of Rs. 340/- and she has landed property and site and for return of gold ornaments seized by police, she had made an application by giving the details. P.W. 28 was examined as C.W. 58 who has stated that, he had lent the loan to both the accused as well as his wife and he is a contractor. C.W. 55 is the mother of the accused wife. The statements of these witnesses were recorded by the police during the course of investigation, and each of the witnesses have disclosed their assets and the source. If these materials were before the police and if that had been placed before the sanctioning authority, sanctioning authority could have considered as to whether sanctioning the prosecution against the delinquent employee would be proper or not. The object behind the sanction is to avoid spurious prosecution, which are not based on the material. It is in this regard, the sanctioning authority was required to consider the material collected by the police so as to find out, whether prosecution could be sanctioned or not. As otherwise it becomes futile exercise by the sanctioning authority, without having any regard to the material collected by the police during the investigation.

The second aspect of the matter is as to whether a plea of proper or valid or absence of sanction required to be taken at the earlier stage, Section 19(4) stipulates the requirement. In this regard, both the Counsels had relied on several judgments of the Apex Court. Learned Prosecutor for the Lokayukta had relied on a judgment in the matter of State, C.B.I., Hyderabad Vs. Edwin Devasahayam, and had submitted that, acquittal on the ground that the entire records were not placed before the sanctioning authority was held as not proper by the Apex Court. He submitted that, the Apex Court reversed the judgment of the High Court by observing that, before the Trial Court, no plea was raised, and that, the High Court was not justified in reversing conviction judgment on the sole ground of sanction was not proper. In the said case, the Trial Court convicted the accused by holding that the sanction is proper. In the said judgment, Apex Court has noticed that, the entire records along with self-contained note was put up by the Secretary and the member (Traffic) Board approved the same and also found that one member of the Board is competent to grant sanction, it also relied on the findings of the Trial Court that, there is an application of mind to the relevant material. At para 5 of the said judgment, the Apex Court while reversing the judgment of the High Court has observed as under:

Without indicating any basis for the conclusion that, records were not placed for consideration, High Court could not have drawn an adverse conclusion that, the relevant records were not produced before the Board.

The Apex Court has not found that the requirement of Section 19(1) does not include the consideration of records, but has found that the Trial Court having found that the sanction was proper based on the finding that the records were placed before the sanctioning authority has reversed the judgment of the High Court. In my opinion, the said judgment is not applicable to the facts and circumstances of this case.

Another judgment relied by the learned Prosecutor for the lokayukta is the judgment in the matter of Paul Varghese Vs. State of Kerala and Another, and to show that, unless it is shown that the failure of justice has been occasioned on account of such irregularity, Court should not interfere with the judgment of conviction unless the accused has raised the plea at the trial stage and not for the first time before the Appellate Court. No doubt, the omission, error, irregularity in the matter of grant by itself is not failure of justice, unless it is shown that it has resulted in failure of justice. However, considering the material collected by the police, the sanctioning authority may or may not have granted the sanction. If the records are not placed and the sanction is obtained, perhaps it makes an occasion for failure of justice. It is pointed out from the investigating papers that, the police in order to substantiate the assets of the accused, disproportionate to the known source of the income, had recorded the statements of several witnesses and had also collected material and the material which has collected by the police, if considered by the sanctioning authority, it might have taken appropriate view. In such circumstances, non-consideration of material by the sanctioning authority and the sanctioning authority granting the sanction to prosecute without applying its mind, may amount to failure of justice.

In this case, apart from the statements of the relatives of the accused were recorded by the police, but also it recorded the statements of third parties who have stated that they have given hand loan. Whether such material was sufficient or not was a matter which could have been considered by the sanctioning authority and if the purpose of Section 19(1) to prohibit the Court from taking cognizance of the offence without the sanction, makes it mandatory that not only there has to be sanction, but the sanction must be proper. No doubt, the Apex Court in the judgment in the matter of Edwin Devasahayam has referred to the earlier judgment and considered as to what constitutes failure of justice and also on the question of raising plea and similarly, in the judgment in the matter of State by Police Inspector Vs. Sri T. Venkatesh Murthy, However, Apex Court in a matter arising from the judgment of this Court in the matter of Ameer Jan, considering the earlier judgments of Apex Court including the judgment in the matter of Parkash Singh Badal, has observed as under:

Parkash Singh Badal''s case, therefore, it is not an authority for the proposition that even when an order of sanction is held to be wholly invalid inter alia on the premise, that the order is a nullity; having been suffered from the vice of total non-application of mind. We, therefore, are of the opinion that the said decision cannot be said to have any application in the instant case.

And at para 15, the Apex Court observed as under:

In this case, the High Court called for original records. It had gone thereinto. It was found that except the report, no other record was made available before the sanctioning authority. The order of sanction also stated so. P.W. 8 also did not have the occasion to consider the records except the purported report.

In Parkash Singh Badal''s case, Apex Court had considered the interpretation of provisions of Section 19(3) and (4) and failure of justice. At para 29 of the said judgment, it is observed as under:

The effect of Sub-sections (3) and (4) of Section 19 of the Act are of considerable significance. In Sub-section (3), the tress is on "failure of justice" and that too "in the opinion of the Court". In Sub-section (4), the tress is on raising the plea at the appropriate time. Significantly, the "failure of justice" is relatable to error, omission or irregularity in the sanction. Therefore, mere error, omission or irregularity in sanction is (sic not) considered fatal unless it has resulted in failure of justice or has been occasioned thereby. Section 19(1) is a matter of procedure and does not go to the root of jurisdiction as observed in para 95 of P.V. Narsimha Rao Vs. State (CBI/SPE), Sub-section (3)(c) of Section 19 reduces the rigour of prohibition. In Section 6(2) of the old Act (Section 19(2) of the Act), question relates to doubt about the authority to grant sanction and not whether sanction is necessary.

The second aspect that is required to be considered is, as to the plea to be raised at the earliest stage. Under the said provision, Court has to have regard to the fact, whether objection could and should have been raised at earlier stage. P.W. 29 is the sanctioning authority. A specific suggestion has been made as regard to perusal of records and a grant of sanction mechanically, which reads as under:

Incorrect to suggest that, without verifying any records and being satisfied such sanction order is given mechanically.

After the sanction, the prosecution has led the evidence, a suggestion as regard to non-application of mind is made to the sanctioning authority, no doubt, the suggestion is denied, but neither P.W. 30-Investigating Officer nor the sanctioning authority has stated as regard to the perusal of records, even Ex. P. 77 marked in the evidence of sanctioning authority, it does not refer to any records nor the Investigating Officer states that he had forwarded the records. It is hard to believe whether the sanctioning authority has looked into the records. Neither the Investigating Officer states that, he had placed the records nor even the sanctioning authority states that the records were placed before him nor Ex. P. 77 refers to any material nor even refers to the report said to have been submitted by P.W. 30 on 29-6-1996. In turn P.W. 30 himself states that, he calculated the value of the assets, income and liabilities only after he received sanction on 15-10-1996. If the Investigation Officer himself had not prepared the statement of valuation of the assets, how the sanctioning authority got the figures, what was the material placed before him, whether the statement recorded by the police during the investigation were placed before him, without there being any material it is not known as to what was basis for grant of sanction. In the light of the decision of the Ameer Jan''s case, if the sanction is accorded without making the reference of records, it would be nullity being suffering from vice of total non-application of mind.

Learned Counsel for the petitioner submitted that, in order to investigate the matter, there has to be an authorisation as contemplated u/s 17 of the Act. Section 17 bars any other police officers of the rank mentioned therein from investigating the matter and proviso 2 to Section 17 requires an order of a Police Officer not below the rank of Superintendent of Police in the matter of investigation of an offence referred to u/s 13(1)(e). In this regard, he had relied on the evidence of P.W. 31, the Investigating Officer who registered the case in Crime No. 8 of 1994 for offence u/s 13(1)(e) read with Section 13(2) of the Act and has stated that, he conducted the investigation till 25-1-1995 and from 25-1-1995 one Shastri conducted the investigation. Nowhere in his evidence he refers to any order passed by the police officers not below the rank of Superintendent of Police authorising P.W. 31 to investigate the matter nor there is any document produced by the prosecution to evidence that there was an authorisation to investigate the matter. No doubt, in this connection, learned Prosecutor pointed out that, unless there is a failure of justice merely because no authorisation is produced, the investigation does not get vitiated and in an appeal, such a contention could not be allowed to be raised. In this regard, he relied on the judgment of Apex Court in the matter of Sailendranath Bose and submitted that, investigation by the officer below the rank of Deputy Superintendent of Police does not vitiate the investigation.

The Apex Court while considering the issue as regard to the Investigation by officer less than the rank of officer prescribed has held that, the investigation does not get vitiated only because it is done by the authority other than the one prescribed unless it is shown that there is a failure of justice. However, Apex Court accepted the earlier view taken in a judgement in The State of Madhya Pradesh Vs. Mubarak Ali, u/s 5-A wherein, the, Apex Court has stated that statutory safeguards u/s 5-A of the Act must strictly be complied with for which they are conceived in public interest and were provided as guarantee against frivolous and vexatious proceeding. The Magistrate cannot surrender his discretion to a police officer but must exercise it having regard to the relevant material made available to him at the stage of granting permission. He must also be satisfied that there is reason owing to exigencies of the administrative convenience to entrust a subordinate officer with the investigation. It is further observed therein that, "it is desirable that, the order giving the permission should ordinarily in the face of it disclose the reasons for giving the permission".

Apex Court in the judgment in the matter of Surya Sankaram Karri, at para 13 interpreting the provisions of Section 17 and the word "shall" has observed that, second proviso caused the burden undoubtedly on the prosecution to prove that there was an order authorising the investigation and non-production of the same was treated as fatal. It is useful to refer to para 13, which reads as under:

Para 13. Provisions of the 1988 Act, no doubt, like the 1947 Act seek to protect public servant from a vexatious prosecution. Section 17 provides for investigation by a person authorised for investigation by a person authorised in this behalf. The said provision contains a non obstante clause. It makes investigation only by police officer of the ranks specified therein to be imperative in character. The second proviso appended to Section 17 of the Act provides 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. Authorisation by a Superintendent of Police in favour of an officer so as to enable him to carry out investigation in terms of Section 17 of the Act is a statutory one. The power to grant such sanction has been conferred upon the authorities not below the rank of Superintendent of Police. The proviso uses a negative expression. It also uses the expression "shall" ex facie it is mandatory in character. When the authority of a person to carry out investigation is questioned on the ground that he did not fulfill the statutory requirements laid down therefore in terms of the second proviso, the burden, undoubtedly, was on the prosecution to prove the same. It has not been disputed before us that the Investigating Officer, P.W. 41, did not produce any record to show that he had been so authorised. Sri K. Biswal, the Investigation Officer, while examining himself as P.W. 41, admitted that he had not filed any authorisation letter stating:

I have received the specific authorisation from S.P., C.B.I., to register a case but I have not filed the said authorisation letter.

In the judgment of Surya Sankaram Karri''s case, the Apex Court points out that, merely because the investigation is illegal, the proceedings cannot be quashed unless miscarriage of justice is shown. It is also observed that miscarriage of justice has resulted in non-consideration of material if the law requires that certain act should be shown in a particular manner that have to be performed in the true spirit of the provisions of the Act. Section 17, proviso 2 of the Act specifically requires an order to be passed by an authority not less than the rank of Superintendent of Police to investigate the matter in relation to an offence punishable u/s 13(1)(e) read with Section 13(2) of the Act.

Point No. 3.-Point No. 3 relates to the examination of the accused under the proviso of Section 313 of the Cr. P.C. Section 313 of the Cr. P.C. reads as under:

Power to examine the accused.-(1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court:

(a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary;

(b) shall after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:

Provided that in a summons case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under Clause (b).

(2) No oath shall be administered to the accused when he is examined under Sub-section (1).

(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.

(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.

The object of Section 313 of the Cr. P.C. is to provide an opportunity to the accused in a criminal trial to explain the circumstances with regard to any evidence appearing against him.

The Apex Court in the matter of Ajay Singh, while considering the scope and object of Section 313 has observed that the object of examination under the said section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration for judging his innocence or guilt. Generally Section 313, Sub-section (1), Clause (b) does not limit the nature of questioning to one or more questions of a general nature relating to the case, but it means that the question should not relate to the whole case generally and should also be limited to any particular part or parts of it. The question may be framed in such a manner, so as to enable the accused to know what he has to explain, what are the circumstances which are against him and for which explanation is needed. The whole purpose is to afford opportunity of explaining the circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. The object is to provide a fair opportunity to the accused to satisfy the same. The Court must frame the questions in a manner the accused could be able to understand easily and to answer the same.

In this case, the Special Court has put as many as 33 questions but each of the questions relate to the entire evidence of each of the witnesses, inasmuch as question No. 1 to Question No. 31 refer to P.W. 1 to P.W. 30, one question on each witnesses and in the process, question refers to all the documents referred to by the said witnesses. There are some documents which relate to several accounts in one document and refers to several transaction and several material. Ordinarily it may not be possible to answer such questions by the accused in his statement u/s 313 unless each question is on specific statement in the evidence not by bundling the entire evidence into one question. The way in which the questions are framed, they do not satisfy the purpose for which the statement of accused is recorded u/s 313 of the Cr. P.C. However, not following the strict compliance with the requirement of the provisions of Section 313 of the Cr. P.C. by itself does not vitiate the judgment. No doubt, in this case, the accused has not stated that he has not understood the questions. But what appears is that, the learned Judge without any regard to the provisions of Section 313 of the Cr. P.C. has casually put the questions to the accused, by not referring to the specific incriminating statement. In turn, the learned Judge proceeds on the assumption that the accused has admitted the allegations. This has certainly prejudiced the case of the accused if these questions are not properly put, and if the proper questions were put to the accused against particular imputation, he would have got the chance of explaining.

Point No. 4.-Now coming to the merits of the case, the prosecution has examined as many as 31 witnesses in support of his case. From amongst the said witnesses, P.W. 8 and P.W. 13 speak that they were tenants under the accused and were paying rents to the accused. These witnesses are examined by the prosecution and nothing contrary is elicited in their evidence. If the prosecution itself not only examined these witnesses but elicits the answer, nothing contrary remains to be shown by the accused. There is no reason to disbelieve this evidence. P.W. 22 confirms his statement made before the police, in his evidence before the Court that the accused and his wife each purchased 10 shares, worth of Rs. 5,000/- each and in the cross-examination he states that he had paid 10 gms. of gold each for two years as incentive. P.W. 14 is the father-in-law of the accused. P.W. 24 is the sister of the accused-wife. P.W. 25 is the wife of the accused. P.W. 14-father-in-law of the accused states that he has given land and gold at the time of marriage and had also kept gold with the daughter for sate custody as the accused wife was having a bank locker. P.W. 24 states that she had also kept gold. P.W. 25-wife gives the details of the accounts as regard to the acquisition of property at different point of time, and in her examination-in-chief she specifically avers that she has given list to the lokayukta police including the other immovable properties and also given details, however, whether it is recorded or not she is not aware.

P.W. 25-the wife of the accused, and the prosecution has made several suggestions to her in the examination-in-chief, and she has given details of gold and other properties in her name and in her possession, nothing contrary is elicited by the prosecution. It is surprising that these witnesses are cited by the prosecution, knowing full well that they are supporting the case of the accused.

P.W. 26, who has assessed the income from the land as per his report-Ex. P. 76, in the cross-examination has stated that if the accused have received foodgrains or agricultural land, the amount shown in the report has to be deducted by 376 points.

P.W. 28-a contractor has stated that he has lent money to the accused in the year 1991 and Rs. 42,500/- in 1994 was also to his wife Rs. 60,000/- and Rs. 65,000/- between 1992-94. There is no suggestion by the prosecution as to, on what basis or why the said amount is lent. It is not known as to why this witness is examined in support of prosecution case.

In order to prove the case of the prosecution, prosecution was only required to show that the assets of the accused in disproportional the known source of income. That could have been done by leading evidence of relevant witnesses. However, in this case, most of the witnesses examined by the prosecution are supporting the case of the accused and interestingly their evidence is not challenged by the prosecution. What appears from the evidence of the prosecution is that the prosecution has taken the burden to prove the case of the accused.

Even panch witness-P.W. 2 in his cross-examination has stated that, the Investigating Officer and the goldsmith assessed the value of the gold ornaments and according to him 600 gms. of gold was worth of Rs. 1,00,000/- and that is stated by the Investigating Officer.

P.W. 23-Assistant Engineer of Technical unit of Karnataka Lokayukta has valued the property and according to him, it is worth of Rs. 3,96,000/-, however, he did not furnish the basis of valuation. Ex. P. 75 is his report and in the cross-examination he has denied that the value of the building does not exceed Rs. 2,55,000/-. The learned Sessions Judge in his judgment at para 29 has observed that the valuation cannot be less than Rs. 2,50,000/-, but ultimately he accepts the valuation at Rs. 3,96,000/- without any reason.

Even taking into consideration the entire evidence the total assets disproportionate to the known source of income as alleged in the charge-sheet is Rs. 5,17,133/-. If the evidence of P.W. 28 who is a contractor and who has stated that he had lent the money and that evidence is not shaken by the prosecution, according to him he has lent the money of Rs. 1,84,000/-. The loan amount taken into account is only Rs. 30,000/- whereas, if it is calculated it works out to Rs. 1,32,000/-. There is a difference of Rs. 52,000/- and it has come in the evidence that accused was having agricultural lands and the agricultural income is spoken by P.W. 7.

P.W. 26 who is an Assistant Statistical Officer of Lokayukta who has submitted his report as per Ex. P. 76 and he states that if the accused has received the foodgrains from the agricultural lands, the amount has to be reduced by 376 less. Assuming that Rs. 376 per year if it is reduced from Ex. P. 76 for the relevant period, it would come to Rs. 33,000/-. Then the said amount could have been reduced from the expenditure towards the food articles.

There is also duplication of Rs. 46,950/- as it is added in respect of the house hold articles as per Ex. P. 1 and item No. 15 of Ex. P. 92 in statement showing assets wherein value of house hold articles at Rs. 46,950/- and again it is included in item No. 16 wherein the house hold articles and furnishings were valued at Rs. 1,44,850/-. When the value of house hold articles found in the house are individually assessed at item No. 15, again they are included, it is duplication. Even if these items, which are apparent, are taken into consideration without even going into the other evidence of relatives of the accused, viz., the wife of the accused and others and taking the valuation of the building at Rs. 2,50,000/-, then the calculation would not make the assets of the accused disproportionate to the known source of income.

Prima facie these material makes substantial difference as regards to the assets. Apart from this, P.Ws. 14, 15, 24, 25 and D.W. 4 have stated regarding the gold. P.W. 14 is the father of P.W. 25. P.W. 25 is the wife of accused and even if it is an exaggeration, but the entire evidence cannot be discarded as in the Hindu custom, it is customary that at the time of marriage, gold ornaments are given.

Interestingly, all these witnesses are examined by the prosecution in support of the prosecution case, and it is in the examination-in-chief, these suggestions are made to the witnesses. Hence, there is no reason to disbelieve the same.

What is known source is not only the salary, but the other source of income from lawful source and if that is explained by the accused and applying to preponderance of probability, it shows that the accused has discharged his burden of proving the known source.

Taking the overall circumstance, the Special Court though has noticed the evidence of each of the witnesses but has not appreciated the evidence and has also not assigned cogent and valid reasons for its conclusion nor has stated as to why the evidence requires to be disbelieved. In my opinion, in a case falling under the provisions of Prevention of Corruption Act, the Court is required to assess and appreciate the evidence on record and must support its conclusion by reason and not by reiterating the evidence of each of the witnesses.

What is necessary is a satisfactory explanation by the accused. He must offer a plausible explanation as to how he acquired the assets. In the judgment of the Apex Court in the matter of Sailendranath Bose referred to the earlier. The Apex Court has observed that, burden resting on the accused will be satisfied if the accused person establishes his case by a preponderance of probability and it is not necessary for him to establish his case by proving it beyond reasonable doubt. However, the nature of burden placed on him is not the same as the one placed on the prosecution which must not only has to prove its case, but also prove it beyond reasonable doubt.

The phrase ''known sources of income'' appearing u/s 13(1)(e) of the Act has clearly laid the emphasis on the word ''income''. The income would be what is attached to his office or post, commonly known as remuneration or salary. The term ''income'' by itself is, elastic and has a wide connotation. But the word income is incapable of being understood as meaning receipt having no nexus to one''s labour or expertise, or property or investment. Though the income is a receipt but every receipt cannot become an income. It is in this regard, the Legislature has advisedly used the expression ''satisfactorily account'' and the accused was burdened with providing acceptable explanation.

Prevention of Corruption is a special enactment contemplating a specific procedure in the matter of investigation and prosecution. Section 22 of the Act no doubt provides for application of the procedure contemplated under the Code of Criminal Procedure. However, the investigation contemplated under the Act is different from investigation under the Code of Criminal Procedure. Under this Act there are two special circumstances, one is authorisation to investigate and sanction to prosecute. This may be with a view to prevent abuse of process of law and also prevent the abuse of prosecuting the Government employees without proper material. When special enactment prescribes certain procedure and makes it mandatory, there is no need for the authority to deviate from the same. No doubt, the legislation intended to make effective provision for prevention of corruption. However, though Act is enacted to curb the illegal gratification in public employment, but it also puts embargo on investigation without authorisation, prosecution without sanction.

In this case, there was no difficulty in getting the permission to investigate and if such permission was accorded, no difficulty to produce in the evidence, however, no such permission is produced in this case and there is no explanation. It is essential that the authorities must act in consonance with the requirement of law, in order to give effect to the objects of the Act for which it is legislated. It is noticed in this case both the sanctioning authority for prosecution and granting authority for investigation have failed to exercise their power in terms of the provisions of law, such lapses certainly enure to the benefit of the accused.

Criminal jurisprudence requires that the prosecution must prove the guilt of the accused beyond reasonable doubt. Even assuming under the special enactment, initial burden is on the prosecution to prove the assets disproportionate to the known source of income. It is not known why the prosecution has examined several witnesses to support the case of the accused. Even if the burden is on the accused, initial burden is on the prosecution and that has to be discharged only by the prosecution. In this case, the prosecution has very casually conducted the case. In my opinion, if the lokayukta really wants to give effect to the object of the Act, it not only has to book a case against the guilty public servant but must also prosecute the case effectively. There is no purpose of only filing the charge-sheet without proper prosecution.

From the entire evidence led by the prosecution, it does not prove the charge alleged against the accused. Almost all the witnesses examined by the prosecution support the case of the accused and none of the witnesses are treated as hostile, and rightly as their evidence is in consonance with their statement made before the Investigating Officer. Further, there is no explanation for non-compliance with the requirement of Sections 17 and 19 of the Act as already observed by me. The investigation is done without the authorisation u/s 17 of the Act and prosecution is conducted without the proper sanction u/s 19 of the Act.

In this case the appellant has successfully shown that the prosecution has failed to establish the offence punishable u/s 13(1)(c) read with Section 13(2) of the Act.

Hence, in the circumstances stated above, this appeal deserves to be allowed. Accordingly, the appeal is allowed and the judgment of conviction in Special Case No. 73 of 1996, dated 8-8-2003 is hereby set aside. The accused is acquitted of the offence punishable u/s 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act. Bail bond stands cancelled. Fine, if any, deposited be refunded to the appellant.