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Judgment
This revision petition is directed against the order dated 19092000 passed by the learned Special Judge, Anti Corruption, Jammu whereby he
rejected applications No. 162/ Misc/2000 and 170/Misc/2000 and accepted application No. 171/Misc/2000.
In application No. 162/Misc/2000 petitioner no. 2 had made a prayer for the release of cash amount of Rs. 19,86,150/ in her favour by
showing that the said amount was a part of the price of her and her son's house situated in Trikuta Nagar, Jammu which she alongwith her sons had
agreed to sell to M/s Devki Nandan Kapoor and Others. The agreement of sale was executed on 8121997 and part of the sale price amounting to
Rupees Twenty Lakhs was received by her and her sons. The Vigilance Organisation in the raid conducted in the house of petitioner no. 1 had
seized the said amount showing the same as unaccounted wealth of petitioner no. 1. Petitioner no. 2 (Smt. Nirmala Jalali) had shown this amount in
the Income Tax returns filed before the Income Tax Authorities as part of the consideration for the sale of the house. The learned trial Judge
rejected the application on the ground that this was an afterthought defence concocted in order to escape the penal consequences. No record for
the alleged sale was produced before the Investigating Agency in order to save the seizure of exorbitant amount of Rupees Nineteen Lakhs Eighty
Six Thousands One Hundred and Fifty.
In application No. 173/2000, petitioner no. 1 had made the prayer for placing on record 76 documents, photostat copies thereof except few
(which were in original form) were accompanying the application. The trial Judge disallowed their production as their genuineness was doubted.
The rejection of their production was however, made limited for that stage of the case and the order had no bearing for their production at
subsequent stage of the proceeding.
These (two) applications were rejected by the common order dated 1992000 and in terms of the same order application no. 171/ 2000 was
accepted. Respondent state has not challenged the order so far as acceptance of application No. 171/2000 is concerned but the petitioner has
challenged the rejection on the following grounds.
i) The case was registered in the Vigilance Organisation against the petitioners on 7121997 and at that time no disclosure of any income could be
made as under the Income Tax Act, the assessing year could not have ended in March, 1998 and the disclosure was to be made in the statement
of the year 199899.
ii) Under law, petitioner no. 1 was required to explain the disproportionate part of his assets constituting an offence before the trial Court and not
before the investigating agency. At no stage any questionnaire was served on petitioner no. 2 to explain the disproportionate nature of her assets
and she was denied the right to explain that house belongs to her and her sons. The view taken by the trial court runs contrary to the law laid down
by the Apex Court in the case of State of Maharashtra and others vs. Ishwar Piraji Kalpatri and Others (AIR 1996 SC 722).
iii) The procedure which applies for the trial of an accused in a warrant case also applies for the trial of a case arisen under the J and K Prevention
of Corruption Act. Under subsection (2) of Section 251A, Cr. P.C. the Magistrate/trial Judge by following the procedure has to consider all the
documents referred to in section 173 Cr. P.C. and make their examination. The Magistrate/ trial Judge can make the examination of any of the
giving the prosecution and the accused an opportunity of being heard, he considers the charge against the accused to be groundless, he has to
discharge him.
In the instant case, while following the aforesaid prescribed procedure, the learned Special Judge, Anti Corruption, Jammu has to consider all
the documents referred to in Section 173 Cr. P.C. He has to make the examination of such of the petitioners as he would think necessary and after
giving the prosecution and the accused/ petitioners an opportunity of being heard, order of discharge can be passed. The examination of the
petitioner/petitioners has to be made not in a casual manner but application of mind is required. The trial Judge is simultaneously required to
consider the documents upon which such petitioner or petitioners while advancing this argument, support has been derived by the learned counsel
by citing the law laid down by the Apex Court in the case of State of Madhya Pradesh vs. Mohan Lai Soni (Special Leave Petition (CRL) No.
593 of 1999 decided on July 19, 2000 and copy annexed as annexureD).
Heard the arguments.
Mr. Goja the learned counsel had contended that the learned trial Court has committed grave error in law which has carried the miscarriage of
justice when the production of the documents was refused. Their examination was very relevant at the time of making the examination of any of the
accused petitioner/ petitioners and alleged disproportionate assets could be explained. In their absence, the examination of the accused at the time
of framing the charge cannot be made in the sense as is contemplated under section 251A, Cr. P.C. The Apex Court had considered a relevant
document at this stage in the case of Satish Mehra vs. Delhi Administration and another, 1996(5) Supreme 742. The Income Tax Officer, Ward
No. 5, Jammu in his order of assessment for the year 199899 had judicially held that petitioner no. 2 and her sons had received sale price of the
house in the sum of Rs. 20,00 lakhs. This is the finding of a competent Court and has relevance to the controversy in question. The investigating
agency never interrogated petitioner no. 2 with regard to the seized amount and the documents in support of the receipt of the part of sale
consideration would have exculpated the petitioners from drawing up this charge. The placing of record of all the above stated documents and their
consideration by the learned trial Judge would result in the discharge of the petitioners from undergoing the process of prosecution. The Apex
Court in the case of State of Madhya Pradesh vs. Mohan Lal Soni (supra) has confirmed the order of the High Court for setting aside the order of
the trial Court for framing the charge against the accused when accused had explained disproportionate assets even at the stage of framing the
charge.
In rebuttal, it has been contended by the counsel for the respondent that there is no illegality in the order passed by the trial Court in rejecting the
applications in question. The only illegality which has been committed is in accepting application No. 171/2000. The petitioners have been allowed
to operate the Bank Accounts which had been seized by the Investigating Agency. The learned counsel has cited the case of State of Maharashtra
vs. TapasD. Neogy (1999 AIR SCW2289), wherein it is held that the Bank account of the accused or any of his relation is ""property"" within the
meaning of Section 102 of Criminal Procedure Code (Central Code) and a police officer is course of investigation can seize or prohibit the
operation of the said account if such assets have direct links with the commission of the offence for which the police officer is investigating into. He
has also cited the case of State Anti Corruption Bureau, Hyderabad and another vs. P. Suryaprakasam (1999SCC(Cri) 373) wherein it is held
that at the time of framing of a charge, what the trial court is required to do is to consider the police report referred to undersection 173 Cr. P.C.
and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that. Of course, at that stage the
accused may be examined but that is a prerogative of the Court only. Lastly, the counsel has contended that revision petition is not maintainable
because of the embargo placed by subclause (4a) of section 435 of Cr. P.C. The order impugned is of interlocutory nature and cannot be revised.
The rival submissions of the counsel for the parties have been considered. It is held at the threshold that revision petition is not maintainable
because the impugned order is of interlocutory nature. The order has not determined the rights of the parties as it is not an order of final nature to
have terminated the proceedings. The trial Court has disallowed the applications on the ground that the claim on the seized amount prima facie
appeared as a defence of afterthought. The amount of Rs. 20.00 lakhs is not a small amount and no sane vendee would have parted with it without
getting executed a valid document indicating its receipt by the vendor. Petitioner No. 3 has to explain why she had failed to produce any such
document either at the time when it was seized or at the subsequent relevant stage. Refusal to take on record 76 documents at this stage of the
proceedings has not prejudicially determined the rights of the petitioners because the trial Court has left open their production at the relevant stage.
In the closing line of the order (at the top of page no. 9) the words used are, this application is rejected at this stage. The Apex Court in the case of
Satish Mehra vs. Delhi Administration (supra) had allowed the production of the material by the accused even at the stage of framing the charge as
it was of such a nature that it could clinch the issue. The trial Judge could exercise such a power only after becoming certain that there is no
prospectus of the case ending in conviction. It can be done to save the valuable time of the Court to be wasted for the purpose of formally
completing the procedure to pronounce the conclusion on a future date. In the Satish Mehra's case (supra) complaint was filed by the wife against
her husband and the allegations were of committing sexual offences against her 18 months old female child. The complaint was bereft of any truth
and such a course of action was allowed to get on record documentary evidence of clinching nature. In the case of State of Madhya Pradesh vs
Mohan Lal (supra) (which has been cited by the counsel for the petitioner), only that record was considered by the trial court at the time of framing
the charge which had been collected during the course of investigation and produced before the Court. The finding of the income Tax Officer to
treat the seized amount as part of the sale price of the house in question has no relevancy in these proceedings as it is not a judgement in rem. It
can still be produced at the time of entering into defence in case petitioners are charged by the trial Court. The counsel for the petitioners has failed
to convince that by the production of these documents, the controversy can be settled finally as they are of such a nature that no doubt can be
expressed for their genuineness. There is a prescribed procedure how these documents would get proved. The prosecution has to be afforded an
opportunity to look into their genuineness and relevancy in the proceedings.
In view of the discussion made above, it is held that the impugned order does not suffer from any illegality or impropriety to be interfered with
while invoking the revisional jurisdiction. On the other hand, the order is found of interlocutory nature and it cannot be challenged in view of the
embargo contained in Section 435 (4a) of the Code of Criminal Procedure. The petitioners have the opportunity available to them under Section
5(1) (e) of the J and K Prevention of Corruption Act for satisfactorily explaining about their assets and resources before the trial court, when the
trial commences and not at an early stage. With these findings the revision petition is dismissed. The learned trial Judge is directed to conduct the
proceedings as expeditiously as possible and the petitioners are directed to appear before his court on 1922001.