Supreme Court of India
The State Of Orissa vs Pratima Behera on 19 December, 2024
Author: C.T. Ravikumar
Bench: C.T. Ravikumar, Sanjay Karol
2024 INSC 1010
Non-Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No.3175 of 2024
(@ SLP (Crl.) No. 10262 of 2024)
The State of Orissa
…Appellant(s)
Versus
Pratima Behera
…Respondent(s)
JUDGMENT
C.T. RAVIKUMAR, J.
1. In this Appeal by Special Leave, the appellant
challenges the judgment dated 31.01.2017 passed by the
High Court of Orissa, Cuttack in Criminal Revision
No.381 of 2016. The said Revision Petition was filed by
the respondent herein challenging the order dated
05.03.2016 passed by the Court of Special Judge
(Vigilance), Balasore, in T.R. Case No.43 of 2013
whereunder it rejected the application of the respondent
under Section 239 of the Code of Criminal Procedure,
1973 (for short, “the Cr.P.C.”) for discharge and the
Signature Not Verified
Digitally signed by Dr.
Naveen Rawal
challenge against framing of charge under Section 109 of
Date: 2024.12.19
16:18:02 IST
Reason:
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the Indian Penal Code, 1860 (for short, “the IPC”) read
with Section 13(1)(e) punishable under Section 13(2) of
the Prevention of Corruption Act, 1988 (for short, “the PC
Act”). As per the impugned judgment dated 31.01.2017,
the High Court set aside the framing of charge under the
aforementioned sections of the said enactments and
discharged the respondent under Section 239 of the Cr.
P.C.
2. Heard the learned counsel for the petitioner-State
and the learned senior counsel appearing for the
respondent.
3. The facts in brief necessary for the disposal of this
Appeal are as follows: –
On 25.11.2019, FIR No.56/2009 came to be
registered against Sh. Anil Kumar Sethi, the husband of
the respondent, under Section 13(1)(e) punishable
under Section 13(2) of the PC Act. In the course of the
inquiry, it was found that he is a public servant working
as Assistant Engineer, Rural Works Sub-Division,
Kakatpur, District Puri and was in possession of
disproportionate assets to his known source of income to
the tune of Rs. 40,54,561/-. He was unable to account for
such resources for the disproportionate income and
therefore, found him liable to be prosecuted under the
aforesaid sections of the PC Act. During the course ofCriminal Appeal No.3175 of 2024
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investigation, it was found that the said Anil Kumar Sethi
entered in service as Stipendiary Engineer in the year
1993 in Orissa State Housing Board Corporation and
worked there till March, 1997. Thereafter, he joined as
Stipendiary Engineer in R.D. Department in March, 1997
and later became a regular Assistant Engineer from
January, 1999. In the year 1996 he married the
respondent. Though the respondent, the wife of the said
Anil Kumar Sethi, claimed that she had been filing
Income Tax Returns, they could not be found in the IT
Department, though the Income Tax Authorities were
able to furnish copies of the Income Tax Returns of Sri
Anil Kumar Sethi. The disproportionate assets of the
said Anil Kumar Sethi was found to be Rs.39,96,857.7/- as
against his known source of income of Rs. 25,81,494/-
during the check period from 03.09.1993 to 26.08.2009,
which was calculated to be 155% of the total income. In
a bid to obtain copies of the Income Tax Returns of the
appellant, another attempt was allegedly made by the
then Investigating Officer Sri Nirmal Chandra Mohanty
and he personally visited the Income Tax Office at
Bhubaneswar to obtain the same, but could not get them.
The Income Tax Authorities could not trace them out. It
was in the said circumstances that they were charge-
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sheeted under the sections specifically mentioned
hereinbefore.
4. The respondent and her husband Sh. Anil Kumar
Sethi, thereupon moved applications for discharge
under Section 239, Cr.P.C., before the learned Special
Judge (Vigilance), Balasore. As noted earlier, it is the
dismissal of the said petition that led to the filing of the
Criminal Revision before the High Court and ultimately
leading to impugned judgment. Evidently, the Trial
Court found that there is a potential prima facie case
against the appellant and her husband and the same
could not be interfered with at the nascent stage. The
High Court, as per the impugned judgment, held that
there is no clinching material to show that the appellant
abetted her husband or made any conspiracy or
instigation for the alleged acquisition of
disproportionate assets. After allowing the Revision
Petition qua the respondent, the High Court observed
and held that the impugned judgment should not
influence the mind of the learned Trial Court in
adjudicating the trial qua the co-accused Anil Kumar
Sethi in accordance with law. It is in the said
circumstances that the captioned Appeal has been
preferred.
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5. The learned counsel appearing for the State
submitted that an offence under Section 13(1)(e)
punishable under Section 13(2) of the PC Act, could be
abetted by a non-public servant and in such eventuality
the only mode of prosecution qua that offender is only
through the trial as envisaged under the provisions of the
PC Act. It is paradoxical that to drive home the rival
stands on the framing of charge under Section 109, IPC
both the parties are relying on the decision of this Court
in P. Nallammal and Anr. v. State1. While the appellant
relies on the same to support the contention that offence
under Section 13(1)(e) of the PC Act could be abetted by
a non-public servant and the only mode of prosecuting
such an offender is through trial as envisaged in the PC
Act, the respondent would rely on the very self-same
decision to contend that merely because some of the
disproportionate assets stand in the name of non-public
servant, without any element of abetment, the couple
could not be asked to face the trial along with the public
servant on the ground of their relationship. In short,
going by the respondent, there is no material to support
the charge under Section 109, for abetting the husband
1
(1999) 6 SCC 559; 1999 INSC 314
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Sri Anil Kumar Sethi to commit the aforesaid offence
under the PC Act.
6. It is contended by the learned counsel for the
appellant that though the respondent claimed that she
was an income tax assessee and had filed tax returns, she
did not furnish the tax return receipts and despite
earnest efforts, they could not be found in the IT
Department. It is the further submission of the appellant
that having found grounds to proceed against the
respondent, and a prima facie case made out against her
and her husband, the Trial Court framed charges against
the respondent as mentioned above. The order
impugned dated 05.03.2016 of the Trial Court rejecting
the petition of the respondent herein for discharge filed
under Section 239, Cr. P.C. would reveal that the Court
virtually considered only the question whether the final
report filed in Crime No.56/2009 can be said to be
groundless. It is further submitted that a scanning of the
said order dated 05.03.2016 would also reveal that the
said question was considered within the scope of Section
239, Cr. P.C. by the Trial Court and it is upon finding that
the essential ingredients of the offence for which the
respondent is sought to be charged were satisfied and
they are sufficient to form a prima facie case, the said
application was rejected by the High Court and the
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respondent was called upon to answer the charge and
later framed the charge as mentioned above.
7. Per contra, the learned counsel appearing for the
respondent would contend that the High Court has
rightfully considered the question whether the Trial
Court was correct in calling upon the respondent herein
to answer the charge later and to frame the charge after
declining to discharge the respondent herein, under
Section 239, Cr. P.C. It is the further submission that the
High Court has rightly held that the Investigating Officer
had failed to prove that the respondent had no source of
income. In that regard, the counsel for the respondent
drew our attention to paragraph No.6 of the impugned
judgment whereunder the High Court observed and
held thus: –
“…It is established principle of criminal
jurisprudence that the burden always lies on
the prosecution to prove all ingredients of the
offence charged, and the burden never shifts
on the accused to disprove the charge framed
against him…”
8. It is also the contention of the respondent that she
is a self-dependent lady having her own source of
income and, therefore, could not be held liable for the
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alleged acquisition of disproportionate assets by her
husband. Furthermore, it is contended that the
respondent is an income tax assessee since 2000-2001
and has been filing Income Tax Returns regularly.
According to her, she is doing dairy farming and also
earning money by tuition and she is a M.A. degree
holder from Utkal University, Bhubaneswar and also had
completed a course in data entry and started data entry
business since 2003-2004. It is also her case that she
purchased the land at Bhubaneswar after borrowing
Rs.2.5 lakhs from her father. In short, it is the contention
made on behalf of the respondent that the Investigating
Officer had not conducted investigation to find out the
source of income of the respondent as well as to obtain
the Income Tax Returns filed by her.
9. Before considering the rival contentions on merits
in order to consider the sustainability or otherwise of the
impugned judgment, we think it only appropriate to
consider certain relevant position of law in relation to
certain aspects involved in the case on hand. We will
firstly consider the scope of Section 239, Cr. P.C. In the
decision in R.S. Nayak v. A.R. Antulay & Anr.2, this Court
held that the obligation to discharge the accused under
2
(1986) 2 SCC 716; 1986 INSC 86
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Section 239 arises only when the Magistrate considers
the charge against the accused to be groundless. In the
decisions in State of Delhi v. Gyan Devi and Ors.3, this
Court held thus: –
“7. In the backdrop of the factual position
discussed above, the question formulated
earlier arises for our consideration. The legal
position is well settled that at the stage of
framing of charge the Trial Court is not to
examine and assess in detail the materials
placed on record by the prosecution nor is it
for the court to consider the sufficiency of the
materials to establish the offence alleged
against the accused persons. At the stage of
charge the court is to examine the materials
only with a view to be satisfied that a prima
facie case of commission of offence alleged has
been made out against the accused persons. It
is also well settled that when the petition is filed
by the accused under Section 482 CrPC
seeking for the quashing of charge framed
against them the court should not interfere with
the order unless there are strong reasons to3
(2000) 8 SCC 239; 2000 INSC 491Criminal Appeal No.3175 of 2024
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hold that in the interest of justice and to avoid
abuse of the process of the court a charge
framed against the accused needs to be
quashed. Such an order can be passed only in
exceptional cases and on rare occasions. It is to
be kept in mind that once the Trial Court has
framed a charge against an accused the trial
must proceed without unnecessary
interference by a superior court and the entire
evidence from the prosecution side should be
placed on record. Any attempt by an accused
for quashing of a charge before the entire
prosecution evidence has come on record
should not be entertained sans exceptional
cases.”
10. We may hasten to state at this juncture that though
at the stage of framing of issue what is to be seen is only
whether there is a prima facie case to make the accused
to stand the trial at the trial, certainly, the presumption of
innocence should be in favour of the accused.
11. Taking note of the fact that in the case on hand, the
High Court set aside the charge framed against the
respondent while exercising the revisional power, it is
relevant to refer to the decision in Minakshi Bala v.
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Sudhir Kumar & Ors4. This Court on the question of
quashing of charge by the High Court made the
following pertinent observations: –
“7…To put it differently, once charges are
framed under Section 240 CrPC the High Court
in its revisional jurisdiction would not be
justified in relying upon documents other than
those referred to in Sections 239 and 240 CrPC;
nor would it be justified in invoking its inherent
jurisdiction under Section 482 CrPC to quash
the same except in those rare cases where
forensic exigencies and formidable
compulsions justify such a course. We hasten to
add even in such exceptional cases the High
Court can look into only those documents
which are unimpeachable and can be legally
translated into relevant evidence.
8. Apart from the infirmity in the approach of
the High Court in dealing with the matter which
we have already noticed, we further find that
instead of adverting to and confining its
attention to the documents referred to in
Sections 239 and 240 CrPC the High Court has4
(1994) 4 SCC 142; 1994 INSC 201Criminal Appeal No.3175 of 2024
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dealt with the rival contentions of the parties
raised through their respective affidavits at
length and on a threadbare discussion thereof
passed the impugned order. The course so
adopted cannot be supported; firstly, because
finding regarding commission of an offence
cannot be recorded on the basis of affidavit
evidence and secondly, because at the stage of
framing of charge the Court cannot usurp the
functions of a Trial Court to delve into and
decide upon the respective merits of the case.”(underline supplied)
12. In short, while reiterating the position that in a
prosecution, presumption of innocence should be in
favour of the accused, it has to be said that at the stage of
framing charge, even a very strong suspicion, of course,
founded upon materials and presumptive opinion would
enable the Court to frame charge against an accused.
13. In view of the divergent finding on the question
whether final report was ‘groundless’ or not, we will
consider that aspect and, in that regard, we will have to
bear in mind the position(s) of law mentioned
hereinbefore. Upon going through the order of the Trial
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Court rejecting the petition for discharge, we have no
hesitation to hold that the Court considered that question
fully realising the scope of Section 239, Cr. P.C. As can
be seen from the order dated 05.03.2016, upon such
consideration, though detailed reasons have not been
given, the Trial Court held that prima facie case exists as
borne out from the materials and the final report. We
have, therefore, to consider whether the High Court is
legally correct in interfering with and setting aside the
same and discharging the respondent.
14. At the outset, it is to be noted that the respondent
who did not raise a contention that during the
investigation she has produced the receipts of the
Income Tax Returns before the investigating officer, filed
income tax documents ‘stated to have been obtained’
under the Right to Information Act, 2005 (for short, “the
RTI Act”) from the Income Tax Authorities, as observed
by the High Court. Obviously, paragraph 6 of the
impugned judgment would reveal that the High Court
had considered ‘the said documents stated to have been
obtained under the RTI Act’ and after disregarding the
contention of the appellant that during the investigation
neither the respondent furnished the receipts of the
Income Tax Returns nor they could be found in the office
of the IT Department even on repeated attempts to get
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the same by the Investigating Officer. After going
through such materials, certified copies of Income Tax
Returns for the assessment years from 2008-2009 to 2016-
2017, produced by the learned counsel for the
respondent before the High Court, the High Court
observed and held that it could be inferred that the
investigating agency had deliberately withheld the
material documents like returns of the appellant and
mechanically submitted the chargesheet against her. A
perusal of the impugned judgment would reveal the
nature of the exercise undertaken for passing the
impugned judgment. In fact, the aforesaid observation
was made after going through the documents filed by the
respondent before the High Court. In this context, it is
also to be noted that the High Court has also referred to
the contentions of the respondent, including the one that
for purchasing land at Bhubaneswar, she had borrowed
an amount of Rs.2.5 lakhs from her father. After such
exercise, it was held by the High Court that there is no
clinching material showing that the appellant abetted
her husband or made any conspiracy or instigated him
in the alleged acquisition of disproportionate assets.
This observation itself would go against the very scope
of Section 239, Cr. P.C. as at the stage of consideration of
a petition for discharge what is to be considered whether
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there is a ‘prima facie’ case and certainly, the endeavour
cannot be to find whether ‘clinching’ materials are there
or not. In the common parlance the word ‘clinch’ means
‘point’ or circumstance that settles the issue. We have no
hesitation to hold that such meticulous consideration for
presence or absence of clinching material is beyond the
scope of power of the Court while considering the
question of discharge under Section 239, Cr. P.C. as also
while considering the question of quashing of charge
framed by the Trial Court, while exercising the
revisional jurisdiction. It is to be noted that at that stage
the materials collected by the prosecution would not
mature into evidence and therefore, beyond the
question of existence or otherwise prima facie case
based on materials, the question whether they are
clinching or not could not be gone into.
15. Bearing in mind the said manner of consideration,
we are also constrained to consider the way in which the
Court appreciated the contentions of the appellant based
on various decisions referred to in the impugned
judgment. The Court referred to Nallammal’s case
(supra) and extracted paragraphs 10 and 26 thereof to
hold that merely because some of the disproportionate
assets stand in the name of the non-public servants,
without any element of abetment, they could not be
Criminal Appeal No.3175 of 2024
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asked to face the trial along with the public servants on
the ground that they are the kith and kin of the public
servants. Though, there can be no two views on that, we
are of the view that while considering the question of
abetment for commission of offence under Section
13(1)(e) punishable under Section 13(2) of the PC Act,
the question is whether there is material(s) or
circumstances casting strong suspicion of the co-
accused to have played significant role in negotiating on
the figure of amount disproportionately amassed. The
judgment would reveal that to fortify the said findings,
the High Court elucidated an instance, which is misfit for
the context and circumstances obtained in this case, as
hereunder: –
“4…For example, if the son of the public servant
asks his father to purchase a motorcycle for him
to attend his college and accordingly the
motorcycle is purchased in the name of the son,
if the public servant is found to have acquired
disproportionate assets to his known source of
income, the son cannot be compelled to face
trial as an accused along with his father…”
16. The long and short of the discussion as above, in
the light of the settled position of law stated and
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reiterated by this Court, the judgment under challenge
in the case on hand cannot stand the scrutiny. The High
Court has clearly erred in its approach and exercise of
revisional jurisdiction in quashing the charge framed by
the Trial Court upon finding a prima facie case, and also
in discharging the respondent – Smt. Pratima Behera.
17. Accordingly, the Appeal is allowed. The impugned
judgment dated 31.01.2017 in Criminal Revision No.381
of 2016 is set aside. The Trial Court shall proceed with
the case in accordance with law. Considering the fact
that the case is of the year 2013, the Trial Court shall
endeavour to conclude the trial as expeditiously as
possible.
……………………, J.
(C.T. Ravikumar)
……………………, J.
(Sanjay Karol)
New Delhi;
December 19, 2024
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