In Re: D. Vedagiri

David Annoussamy, J.—This is a revision petition against the Order of the learned Special Judge (Principal Judge), City Civil Court, Madras

in Crl.M.P. No. 2760 of 1981 in C.C. No. 16 of 198.1 dismissing the, petition filed by the accused/Petitioner herein peeking his discharge. The

facts of the case are briefly as follows:

The Petitioner was a Divisional Engineer working in the Tamil Nadu Electricity Board, Dharamapuri Division. The Department of Vigilance and

Anti corruption received information that the Petitioner was indulging in corrupt practices and was amassing wealth illegally. Thereupon, a

preliminary investigation was started in the course of which statement of assets, statement of income and statement of expenditure were obtained

for the Petitioner through his head department. The investigating officer verified these statements and found that none of them was fully correct.

Upon his own enquiry, he came to the conclusion that the total income of the Petitioner for the check-period, viz., 1st May, 1968 to 30th June,

1977, was Rs. 1,52,109.74, the total expenditure 82,057.65, and hence the likely savings Rs. 70,452. On the other hand he assessed the total

assets possessed by the Petitioner at Rs. 1,64,331.71. The difference between the total assets and the likely savings, viz., Rs. 93,880 was found to

be not accounted. Considering therefore that there was a vast difference between what the Petitioner was likely to possess legally and he

possessed actually, he came to the conclusion that there was a prima facie case of an offence u/s 5(1)(e) of the Prevention of Corruption Act, 2 of

1947 hereinafter referred to as the Act, being committed and accordingly filed, what he called ""a charge-sheet"" against the Petitioner before the

concerned Judge. Immediately after the submission of the ""Charge-sheet"", a petition was filed by the Petitioner herein praying for his discharge. His

case was that as per Section 5(1)(e) of the Act, there would be an offence only when he cannot satisfactorily account for the possession of his

assets, that therefore, he should have been called upon to explain for the possession of pecuniary resource of properties found to be

disproportionate and that till then no valid report incriminating the Petitioner could be filed by the police before the Court. He contended that since

the report was incomplete in respect of a substantial point, the Court should not proceed to frame the charge and hence he prayed for being

discharged.

The Petitioner''s contention was not accepted by the Special Judge, who ruled that the Petitioner could explain the disproportion between the

savings and the assets pointed out by the investigating officer in the course of the trial, and the petition was dismissed by order, dt. 2nd March,

1982. This order is now challenged in the present revision petition.

In this revision petition, the Petitioner reiterated the same contention as the one raised before the Special Judge, viz., that the investigation was

not complete as long as he was not given an opportunity to explain the difference between his assets and the likely savings arrived at by the

investigating officer.

The contention of the learned public Prosecutor is that there is no statutory obligation for the investigating officer to examine the accused and

that therefore for the absence of any question being put by the investigating officer, the investigation will not be considered as incomplete or

otherwise challengeable.

It is true, as contended by the learned Public Prosecutor, that it is not necessary in ordinary cases for the investigating officer to examine the

accused on the different ingredients of the offence. His duty consists only to find out by examination of witnesses, by search and by other methods

open to him whether an offence has been committed. But the offence under S. (1)(e) of the Act is of a special nature as it could be seen from the

relevant clause of the Act, which reads as follows:

5(1). A Public servant is said to commit the offence of Criminal misconduct-

(a) ..................

(b) ..................

(c) ..................

(d) ..................

(e) If he or any person on his behalf is in possession or has, at any time during the period of his office, been in possession, for which the public

servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.

It is seen from the above clause that the failure of accounting for the possession of the property by the person concerned is a distinct element of the

offence. In fact, it is not merely the possession of the property disproportionate to the known courses of income that constitutes an offence, but it is

the failure to satisfactorily account for such possession that makes the possession objectionable and offending the law. In other words, two phases

are contemplated in the investigation; firstly the discovery of the existence of property disproportionate to the sources of income openly known to

the investigation, machinery, and secondly the scrutiny of the explanation that the public servant might offer in disclosing other sources of legal

income or in any other manner. As per Section 173 of the Code of Criminal Procedure, when the investigating officer files his final report he should

state whether an offence appears to have been committed or not. For coming to that conclusion, he has to ascertain to his satisfaction whether all

the ingredients of the offence are found to be present. Therefore, for an offence u/s 5(1)(e) of the Act the investigating officer has necessarily to

satisfy himself that the concerned public servant has not satisfactorily accounted for the possession of pecuniary resources or property, found by

the investigating officer disproportionate to his known source of income. It is thus obvious that the investigating officer should give an opportunity to

the person investigated against to explain the disproportion found by him.

In the present case the data, given by the Petitioner are as follows:

Income Rs. 1,85,714.25

Expenditure Rs. 53, 018.50 (and)

Assets Rs. 1,34,518.77

The respective figures arrived at by the investigating officer on the basis of which he filed the report u/s 173, Code of Criminal Procedure are:

Income Rs. 1,52,109.74

Expenditure Rs. 82,057.65 (and)

Assets Rs. 1,64,331.71

Though the investigating officer on two occasions had the opportunity of examining the petition and put questions on the specific items of income,

expenditure and assets either disclosed by the Petitioner or discovered by him, at no point of time he informed the Petitioner that as per his

investigation the total assets possessed by the Petitioner were worth Rs. 1,64,331.71 and his likely saving was only Rs. 70,452 and that he found

an excess of Rs. 93,080 and called upon him to explain the excess. On the face of it. the report filed by the investigating officer does not disclose

that he has satisfied himself that this essential ingredient of the offence has been found to be present. On account of this failure, the investigation is

not complete.

At this stage, the learned Public Prosecutor suggested that before framing the charge, the court can call upon the Petitioner to explain the

disproportion and then to proceed further according to the nature and value of the explanation offered. No doubt, when a report is incomplete, it is

open to the court to complete the process, but the court can also direct the investigating officer to complete the investigation and file a complete

report and this latter course is the more appropriate one.

It is also found that the report filed by the investigating officer is formally not correct. In the first place, it is styled as a ''charge-sheet''. The act of

charging a person of a criminal offence is a very important and serious one. No officer can arrogate to himself such a power. Only those vested

therewith can exercise it. In a criminal proceeding, it is only the court which has got power to charge any person. It can do so as per Ss.239 and

240, Code of Criminal Procedure only after considering the police report, the documents sent with it and after giving the prosecution and the

accused an opportunity of being heard and if it is of opinion that there is ground for presuming that the accused has committed the offence. The

Code of Criminal Procedure indicates clearly in Section 173 that the role of the investigating officer is confined to filing a report stating whether any

offence appears to have been committed or not. It appears that the word ''charge-sheet'' has been borrowed from the Madias Police Standing

Orders, Form-67, a Form evolved presumably prior to the Code of Criminal Procedure and same can no longer be used in the teeth of the clear

provisions of the Code. It is high time that the terminology indicated by the Code in Section 175 is adopted in order to avoid any complications

and to comply with the spirit and letter of the Code.

Learned Counsel for the revision Petitioner also contended that the sanction issued by the Government was not in order, because the sanction

Order issued by the Government refers to the period from 2nd August, 1962 to 30th March, 1975 and from 31st March, 1975 till date (20th

March, 1981), whereas the check period as per the investigating officer is from 1st May, 1968 to 30th June, 1977. It was argued by the learned

Counsel for the revision Petitioner that the Government did not have the proper materials before them for satisfying themselves about the

expediency of issuing sanction order, that there was no proper application of mind and that therefore the sanction was affectless .It if unnecessary

to go into the merits of this contention, since I am sending back the matter. It will be open to the investigating Officer, if he is so advised, to get a

fresh and defect less sanction order from the Government.

In the result, the revision petition is allowed, the order of the Special Judge is set aside and the investigating officer is directed to complete his

investigation in the light of the observations made in this judgment and file expeditiously his report in accordance with Section 173, Cr.P C.