Tara Prasad Das vs The State of Assam

This is a criminal revision petition, filed under Sections 397/401 and Section 482 of the Cr.PC, challenging the legality, propriety and

correctness of the order, dated 9.5.2014 and 15.5.2014, passed by the learned Special Judge, Assam, Guwahati, in Special Case No. 15/2012,

arising out the A.C.B. PS Case No. 13/2001, pending before the learned Special Judge, Assam, Guwahati.

I have perused the petition as well as the annexures furnished therewith including the impugned orders.

I have also heard Mr. N. Dutta, learned Senior counsel for the accused-petitioner assisted by learned counsel Mr. S. Bharali, and learned

Additional Public Prosecutor Mr. B.J. Dutta, for the state respondent.

The fact of the case is that a charge-sheet was laid against the present accusedpetitioner by the Investigating Agency alleging accumulation of

disproportionate property during the check-period of 13.12.1991 to 31.7.2000. During this period, the accused-petitioner was the Member of the

Assam Public Service Commission (APSC) and he became Chairman of the Assam Public Service Commission in the later part of the check-

period. The learned trial court, in its order dated 9.5.2014, detailed the background of the case and after considering the materials placed before it

came to a conclusion that there was prime-facie materials to go for trial against the accusedpetitioner under Sections 13(1)(e)/13(2) of the

Prevention of Corruption Act, for accumulation of disproportionate assets to the tune of Rs. 1,92,33,603.25 during the check-period aforesaid.

The learned trial court, thereafter, framed a formal charge against the accusedpetitioner, vide the order dated 15.5.2014, under the aforesaid

provisions of law.

Learned Senior counsel for the petitioner has urged the following grounds before this court to substantiate his contention that the charge could

not have been framed by the learned trial court as certain factors, indicated below, had not been considered.

i) Learned Senior counsel for the petitioner has submitted that in the impugned order dated 9.5.2014, the learned trial court refused to accept the

decision of the Income Tax Appellate Tribunal on the ground that the Income Tax Appellate Tribunal allowed the appeal of the petitioner on

technical ground of non-issuance of notice by the assessing officer to the accused-petitioner within the statutory period of 12 months as required

under Section 143(2) of the Income Tax Act inspite of the fact that the Income Tax Appellate Tribunal, in its order, held that the assets which were

shown as undisclosed by the assessing officer, were disclosed assets in fact. That being so, the decision of the Appellate Tribunal is not only on

technical ground but also on facts as it is said that the income which were assessed to be not disclosed were in fact disclosed assets, and as such,

this factual aspects of the decision rendered by the appellate tribunal is said to have been ignored by the learned trial court while considering

framing of charge.

ii) The second argument canvassed before this court by the learned Senior counsel for the accused-petitioner is that there is a fresh assessment

made by the income tax authority in respect of the assets of the petitioner during the check-period. As per this fresh assessment of the assets of the

accused-petitioner, the Income Tax Tribunal refunded Rs. 84,80,383/- to the petitioner. According to the learned senior counsel for the petitioner,

this aspect ought to have been taken into consideration by the learned trial court while considering the framing of charge against the accused-

petitioner.

iii) Further submission made by the learned Senior counsel for the petitioner is that the investigating agency laid the charge-sheet against the

accused-petitioner taking into account his assets which existed prior to commencement of the check-period, and, had the assets acquired by the

accused-petitioner prior to the check-period been taken into consideration, the learned trial court would have found that there is no

disproportionate assets accumulated by the accused-petitioner during the check-period.

The contention of the learned senior counsel for the petitioner is that at the time of framing charge the learned trial court ought to have been

confined to the assets/properties acquired by the accused-petitioner during the check-period and the calculation made by the prosecution in

assessment of the assets of the accusedpetitioner as found from the charge-sheet itself is shown to be zero at the beginning of the check-period.

These aspects, referred to above, are not considered by the learned trial court, as submitted by the learned Senior counsel for the accused-

petitioner. Had these factors been considered, the decision would have been otherwise, it is submitted.

I have considered the submission made by the learned Senior counsel for the accused-petitioner as well as by the learned Additional Public

Prosecutor Mr. B.J. Dutta, for the state respondent.

I have considered the decision of the Hon''ble Supreme Court in State of Madhya Pradesh vs. Mohanlal Soni, reported in (2000) 6 SCC 338,

referred to by the learned Senior counsel for the accused-petitioner, particularly paragraph-8 thereof. Paragraph- 8 of the said decision is quoted

below for convenience of the appreciation.

In Anand Bezbaruah vs. Union of India the Gauhati High Court was of the view that where accused was charged with the offence of having

resources and property disproportionate to his income and trial court failed to consider and evaluate the income tax return which clearly

established that the property included in the assets of accused and shown to be disproportionate is the wife''s property bought from her own

resources and should have been excluded from assets of the accused.

Another decision of the Hon''ble Supreme Court in State of Maharashtra vs. Pollonji Darabshaw Daruwalla, reported in 1987 (Supp.) SCC

379, referred to by the learned Senior counsel for the accused-petitioner, particularly paragraph-16 thereof, which reads as follows :

The choice of the period must necessarily be determined by the allegations of fact on which the prosecution is founded and rests. However,

the period must be such as to enable a true and comprehensive picture of the known sources of income and the pecuniary resources and property

in possession of by the publicservant either by himself or through any other person on his behalf, which are alleged to be so disproportionate. In the

facts and circumstances of a case, a ten year period cannot be said to be incapable of yielding such a true and comprehensive picture. The assets

spilling-over from the anterior period, if their existence is probablised, would, of course, have to be given credit-to on the income side and would

go to reduce the extent and the quantum of the disproportion.

As per the decision of the Hon''ble Supreme Court in State of Madhya Pradesh vs. Mohanlal Soni (Supra), the learned trial court should have

considered and evaluate the assessment and orders etc. of the Income Tax Appellate Tribunal, which have not been considered in the instant case

as appears from the impugned order, dated 9.5.2014 itself.

On the other hand, the decision of the Hon''ble Supreme Court in State of Maharashtra vs. Pollonji Darabshaw Daruwalla (supra), the assets

spilling-over from the anterior period, if their existence is probablised, would, of course, have to be given credit-to on the income side and would

go to reduce the extent and the quantum of the disproportion.

The learned Senior counsel for the accused-petitioner has referred to the fact that some of the properties/assets shown to be disproportionate

in respect of the accused-petitioner is ancestral property as per the documents and records and some of the properties belong to some other

persons which is evident from the record collected by the investigating agency itself which were not considered by the learned trial court.

Upon hearing the submission made by the learned Senior counsel, this court is convinced that the learned trial court is required to reconsider

the charge framed against the accused-petitioner on the basis of materials on record including the factors raised by the learned Senior counsel, as

indicated above, so as to enable itself to arrive at a conclusion based on materials placed before it by the prosecution. It deserves a mention here

that the references of the assessment, order, etc. of the Income Tax Department including the Income Tax Appellate Tribunal, CIT (Appeal) as

well as the calculation-sheet enclosed with the charge-sheet are all the documents relied upon by the prosecution itself.

Therefore, the order framing charge against the accused-petitioner is set aside with a direction to the learned trial court of Special Judge,

Assam, Guwahati, to hear both the parties afresh on the question of framing of charge and to take an appropriate decision on the materials on

record keeping in view the submission made by the learned Senior counsel for the accused-petitioner, which are referred to above.

The order dated 9.5.2014 and order dated 15.5.2014, passed by the learned Special Judge, Assam, Guwahati, in Special Case No. 15/2012

are set aside.

The accused-petitioner is directed to appear before the learned trial court on 05.03.2018.

Interim stay granted earlier stands vacated.

Send down the LCR along with a copy of this judgment.