Central Bureau Of Investigation (Cbi) vs Mrs. Pramila Virendra Kumar Agarwal

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1489­1490 OF 2019 (Arising out of SLP (Criminal) Nos.8968­8969 of 2019 (Arising out of Diary No.23350/2017)

Central Bureau of Investigation (CBI) Etc. .…Appellant(s)

Versus

Mrs. Pramila Virendra Kumar …Respondent(s) Agarwal & Anr.Etc.

JUDGMENT

A.S. Bopanna,J.

Delay condoned.

2. Leave granted.

3. The appellant Central Bureau of Investigation (CBI)

is before this Court assailing the order dated 14.12.2015

passed by the High Court of Judicature at Bombay in Signature Not Verified Digitally signed by MADHU BALA Date: 2019.09.27 Criminal Revision Application Nos. 284/2013 and 16:15:39 IST Reason:

323/2013. Through the said order the High Court has

Page 1 of 15 allowed the Criminal Revision Application No. 284/2013

and discharged the accused No. 2 and further the

Criminal Revision Application No. 323/2013 filed by the

appellant herein was dismissed.

4. The brief facts limited to the disposal of these

appeals is that the first respondent in both these appeals,

namely, Smt. Pramila Virendra Kumar Agarwal and Shri

Virendra Kumar Agarwal were charged under Section

13(1)(e) read with Section 13(2) of the Prevention of

Corruption Act, 1988 (‘P.C. Act’ for short) and Section

109 of IPC. The respondent No. 1 in SLP (Crl.) D.No.

23350/2017 is the wife of the respondent No.2. They are

charged as accused No. 2 and accused No. 1 respectively

and are proceeded against in CBI, ACB Special Case No.

21/2010. In the said proceedings both the accused filed

separate applications seeking their discharge. The

application of accused No. 1 Shri Virendra Kumar

Agarwal was registered as Exhibit 13 while that of

accused No. 2 Smt. Pramila Virendra Kumar Agarwal was

registered as Exhibit 20. The Special Court on

Page 2 of 15 consideration of the application for discharge has allowed

the application of accused No. 1 – Shri Virendra Kumar

Agarwal through the order dated 15.01.2013 and

discharged him from the offences charged against him

under FIR No. RC 49(A)/2007:CRI:ACE:Mumbai. Insofar

as the application filed by accused No. 2 ­ Smt. Pramila

Virendra Kumar Agarwal the Special Court through the

order dated 22.02.2013 had rejected the application.

5. In that background the appellant herein – CBI

claiming to be aggrieved by the discharge of accused No.

1 had filed the Criminal Revision Application No.

284/2013 before the High Court. The accused No. 2,

Smt. Pramila Virendra Kumar Agarwal claiming to be

aggrieved by the rejection of her application for discharge

had filed the Criminal Revision Application No. 323/2013

before the High Court. Since both the Criminal Revision

Applications were arising out of the same proceedings

before the Special Court, in Special Case No. 21/2010,

the High Court had clubbed and considered the same

and disposed of through the common order dated

Page 3 of 15 14.12.2015 by which the Revision Application of the

accused No. 2 was allowed while the Revision Application

of the appellant herein assailing the discharge of

accused No. 1 was dismissed. It is in that light the

appellant herein – CBI has instituted these appeals

assailing the said common order dated 14.12.2015.

6. Heard Shri K.M. Natraj, learned Additional Solicitor

General, for the appellant and Ms. Sonia Mathur, learned

Senior Advocate, for the private respondents as also Shri

Nishant Katneshwarkar, learned standing counsel for the

State of Maharashtra and perused the appeal papers.

7. The learned Additional Solicitor General at the

outset would point out that the High Court though had

taken up both the Revision Applications and disposed of

the same through the common order and in the operative

portion has allowed the application of accused No. 2 and

dismissed the Revision Application of the appellant

herein, the order impugned does not indicate any reasons

for consideration and disposal of the Revision Application

whereby the appellants had challenged the discharge

Page 4 of 15 order of accused No. 1. It is further contended that the

reasons as assigned by the Special Court as also the High

Court for discharge of the accused on the ground that

they were not provided opportunity to explain and the

explanation offered is not a part of the charge sheet is not

justified. It is contended that in the criminal

investigation such procedure is not contemplated and as

such both the Courts have committed an error. It is also

contended by the learned Additional Solicitor General

that the Special Court as well as the High Court has

erred in concluding that the sanction for prosecution is

not done in accordance with law since that aspect can

only be considered during trial and not in the manner as

has been done presently since the contention was of

defective sanction and not that the proceedings was

without sanction. It is his case that the proceedings were

initiated against the private respondents herein based on

information received and when the investigation revealed

disproportionate assets the charge sheet was filed in that

regard. The correctness of the charge is to be established

with evidence during trial and in that circumstance the

Page 5 of 15 discharge granted based on certain assumptions is not

justified.

8. The learned senior counsel for the private

respondents on the other hand sought to contend that

the initial order of discharge of accused No. 1 by the

Special Court and the subsequent order of discharge of

accused No. 2 by the High Court is on proper

consideration and the same do not call for interference.

It is contended that though the prosecution has sought to

charge the private respondents herein alleging that they

had during the check period i.e. 01.01.1994 to

21.10.2007 accumulated assets to the tune of Rs.

1,06,89,194/­ disproportionate to the known source of

income, the agency has wrongly clubbed the assets of

both the private respondents merely because they are

husband and wife. It is contended that both of them are

employed and have their separate earning and as such

the clubbing of the assets would not be justified. It is

contended, in that circumstance if the individual assets

of the accused No. 1 and 2 are taken into consideration

Page 6 of 15 the charge of accumulation of disproportionate assets

would not be justified. In that light it is contended that

the Special Court as also the High Court having

appreciated these aspects has found the charge to be not

justified. The learned senior counsel has further sought

to refer to the details of the income during the check

period as also the assets of each of the accused to

contend that the charge is not justified and in that

circumstance if the provisions in Section 13(1)(e) of the

P.C. Act is kept in view the charge was without basis. It

is also the contention of the learned senior counsel that

the sanction order is without application of mind and is

non est since such sanction order has also been granted

in the background of clubbing the income of two public

servants who had independent source of income and

were assessed to tax independently. Hence the learned

senior counsel sought to sustain the order passed by the

High Court which is impugned herein.

9. In the background of contention as urged, a

perusal of the order would indicate that the High Court

Page 7 of 15 has not separately considered the correctness or

otherwise of the order passed by the Special Court, one

while rejecting the discharge application of the accused

No. 2 and the other while allowing the discharge

application of accused No. 1. However, a perfunctory

consideration has been made by raising the question for

consideration as to whether the Investigating Officer was

under obligation to record explanation offered by the

accused and whether such explanation should be part of

the charge sheet and in that light a question is also

raised as to whether the sanctions for prosecution were

defective.

10. While addressing the same the High Court has

referred to the decisions of this Court wherein it is held

that the investigation must be fair and reasonable and

that the Enquiry Officer must not act under any

preconceived idea of guilt of the accused person. The

judgment of the Bombay High Court in the case of N.P

Lotlikar vs. C.B.I was referred to indicate that it was

held therein that mere possession of assets is not an

Page 8 of 15 offence but failure to explain or account for the same

would amount to an offence. The said decision was also

relied upon since it was held therein that before

registration of offence an opportunity ought to have been

given to the accused to explain the source of funds for

acquiring and possessing the assets. Having taken note

of the same the learned Judge of the High Court has also

taken note of the submission of the learned Special

Prosecutor who had pointed out that during the

investigation the accused were called and their

statements were recorded. However, not being satisfied

with the submission to that effect, the learned Judge was

of the opinion that the Investigating Officer ought to have

given specific opportunity to the accused for submitting

an explanation. Thus, having considered the same to be

a lapse it was held that if sanctions for prosecutions were

sought in that circumstance, the Sanctioning Authority

would not have an opportunity to see the explanation

and, therefore, sanction also would be defective. Page 9 of 15

11. Firstly, it is to be taken note that as contended by

the prosecution, in the course of the investigation the

accused have been summoned and their statements have

been recorded which by itself is for the purpose that they

were required to provide an explanation with regard to

the assets which were according to the prosecution

disproportionate to the known source of income. The

said procedure to be followed in the course of

investigation does not contemplate the consideration of

the explanation in the nature of a mini trial, if not

satisfactory, even before the charge sheet is filed based

on the material collected and the statement recorded in

the course of investigation. The details indicated in the

charge sheet after making reference to the income and

expenditure is as hereunder:

A) The value of the assets of the 1,30,000/­ beginning of the check period as per Statement “A” B) The value of the assets at the end of 1,34,45,426/­ the check period as per Statement “B”

C) The total assets found during the 1,33,15.426/­ check period (B­A) D) The total income found during the 51,02,106/­ check period as per Statement “C”

Page 10 of 15 E) The total expenditure during check 24,75,874/­ period as per Statement “D” F) Likely saving during check period (D­ 26,26,232/­ E) G) The Disproportionate assets (C­F) Viz 1,06,89,194/­ 209.50%

12. Even if it is accepted that the above statement is

on clubbing the income and assets of the husband and

wife who have individual source of income, the very

details furnished by the CBI before the High Court by

splitting it in the individual capacity will also prima facie

indicate the nature of the income and the

disproportionate assets allegedly possessed by them at

Rs.47,93,946/­ and Rs.56,75,812/­ respectively. The

High Court in fact has not adverted on that aspect to

arrive at a conclusion that in that circumstance even if

the case as put forth by the investigating agency is taken

as correct the same would not constitute an offence and,

therefore, they are to be discharged, which in fact is the

nature of consideration required. Further the Special

Court also has merely stated that it has perused the

documents and a reference in that regard is made to the

document at Serial No. 3, namely, the Agreement of Sale

Page 11 of 15 of Flat No. A 305, Shiv Geeta Co­operative Housing

Society Ltd., Vasai. In any event the conclusion reached

therein had been assailed before the High Court but the

High Court has not adverted to those aspects of the

matter.

13. Further the issue relating to validity of the

sanction for prosecution could have been considered only

during trial since essentially the conclusion reached by

the High Court is with regard to the defective sanction

since according to the High Court, the procedure of

providing opportunity for explanation was not followed

which will result in the sanction being defective. In that

regard, the decision in the case of Dinesh Kumar vs.

Chairman, Airport Authority of India, (2012) 1 SCC

532 relied upon by the learned Additional Solicitor

General would be relevant since it is held therein that

there is a distinction between the absence of sanction

and the alleged invalidity on account of non­application

of mind. The absence of sanction no doubt can be

agitated at the threshold but the invalidity of the sanction

Page 12 of 15 is to be raised during the trial. In the instant facts,

admittedly there is a sanction though the accused seek to

pick holes in the manner the sanction has been granted

and to claim that the same is defective which is a matter

to be considered in the trial.

14. In the above background, the impugned order

would indicate that the High Court has not adverted to

the charge made against the accused wherein the charge

against the accused No. 2 is also of abetting the

commission of offence by the accused No.1 and in that

regard the conclusion reached by the High Court is not

that the charge is not sustainable for the reasons

recorded by it. In fact, neither there is any reasons

recorded nor application of mind to that aspect. Insofar

as the question raised and considered by the High Court,

no credence whatsoever has been given to the case of the

prosecution that the statement of the accused has been

recorded which also forms the basis of the charge sheet

and the explanation thus accorded by the accused does

not provide satisfactory answer for the charge of

Page 13 of 15 disproportionate assets. In that regard the High Court

has proceeded at a tangent and has on that basis also

arrived at the conclusion that the sanction for

prosecution is not proper.

15. Further it is noticed that the High Court has

recorded that the statement of the accused made to the

police during investigation is not admissible and the

procedure adopted during investigation is found to be

defective. Such conclusion would arise for consideration

only during trial and if the statement made is retracted

and there is no other material or evidence on record to

establish the charge. Hence the very manner in which

the High Court has proceeded to consider the matter is

erroneous and the conclusion reached is unsustainable.

The private respondents/accused in any event would

have the opportunity of putting forth their defence in the

trial and as such all contentions in that regard are to be

left open and any of the observations herein are limited to

the consideration of the applications for discharge and

the same shall not prejudice the case of the accused. It

Page 14 of 15 is for the said reason we have not thought it appropriate

to advert more into the contentions relating to the charge

except for noticing the charge made relating to the

disproportionate assets without stating on its correctness

or otherwise.

16. In that view, the order dated 14.12.2015 passed by

the High Court and order dated 15.01.2013 passed by

Special Court are set aside. The proceedings in Special

Case No.21 of 2010 is restored to file of the Special

Court. All contentions on merits of both the sides are left

open to be urged before the Special Court in accordance

with law.

17. Accordingly, the appeals are allowed with no order

as to cost. All pending applications shall stand disposed

of.

……………………….J. (R. BANUMATHI)

……………………….J. (A.S. BOPANNA) New Delhi, September 25, 2019

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