OM PRAKASH SHARMA Vs. CBI

JUDGEMENT

(1.) By this petition the Petitioner challenges the order dated 4th May, 2011 passed by the Learned Special Judge CBI-I, Central Delhi framing charge for offence punishable under Section 13(2) read with 13(1)(e) of the Prevention of Corruption Act 1988 (in short "PC Act") against the Petitioner in CC No. 141/2007 arising out of RC No. 8(A)/91-SIU-VIII CBI.

(2.) Learned counsel for the Petitioner contends that while framing the charge, the Learned Special Judge ignored all the documents, which were in possession of the CBI. He states that he is not basing his claim on the documents, which are not in possession of the CBI like the orders passed by the Income Tax Appellate authority adjudicating finally the income of the Petitioner?s family members, which would be the defence available to the Petitioner at the time of trial, in view of the decision of the Hon?ble Supreme Court in State of Orissa v. Debendra Nath Padhi, 2005 1 SCC 568. The documents, which were in the possession of the CBI, were required to be looked into at the stage of charge. Relying upon Virender Singh Vs. CBI, 2011 1 JCC 623 it is contended that as held the expression known sources of income occurring in Section 5(1)(e) means the sources known to the prosecution and not the sources relied upon and known to the accused. In the present case, the sources were clearly known to the prosecution, however they were not considered by the Learned Special Judge in the impugned order. The Petitioner has clearly stated in his two responses dated 2nd June 1995 and 11th June, 1995 to the notices under Section 160 of the Cr.P.C. that the Investigating Officer had examined him in December, 1991 and at that stage, all documents were given. The letter of the Petitioner dated 30th August, 1993 also stated that the Investigating Officer had examined the Petitioner on 30th December, 1991 when all details regarding sources of income and the assets acquired by him were informed to the Investigating Officer. In fact, statements of all the family members were recorded, which also the CBI withheld and the Petitioner was constrained to take a copy thereof by moving an application under Section 91 Cr.P.C. Relying upon Shakuntala Devi Vs. State of Delhi,2007 DLT 178 it is contended that a fair and just investigation is the hallmark of any investigation. Further the Court may not take into consideration the defence documents at this stage, however it is duty bound to consider all documents collected by the CBI whether they were relied upon or not because the investigating agency cannot withhold documents to make out a case against the Petitioner. The income and assets of the Petitioner?s relations and family members cannot be clubbed with that of the Petitioner. Documents, which were with the prosecution like the estate duty paid on the late mother?s property, son?s scholarship, daughter?s income, wife?s personal income, younger son?s income, have been disregarded. It is well settled that no person can be prosecuted except in accordance with the procedure established by law. Hon?ble Supreme Court in State of West Bengal and Ors. v. The Committee for Protection of Democratic Rights West Bengal and Ors., 2010 AIR(SC) 1476 held that an accused has a right of free and fair investigation. In State Inspector of Police, Visakhapatnam vs. Surya Sankaram Karri, 2006 7 SCC 172 their Lordships condemned an unfair investigation. It was held that the least a Court of Law would expect from the prosecution is that the prosecution would be a fair one. Relying on Hem Chand Vs. State of Jharkhand, 2008 5 SCC 113 it is contended that on the basis of admitted documents i.e. the documents admitted by the prosecution, the accused has a right to show that no case is made out against him. In view of Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja and others, 1990 4 SCC 76 it is contended that even at the stage of charge, the Court has to sift the evidence to see whether any charge is made out against the accused or not. Further the Court is duty bound to look at the material placed on record. Relying upon State of Madhya Pradesh Vs. Sheetla Sahay and Ors., 2009 3 SCC(Cri) 901 it is contended that the Court cannot ignore the material, which is in favour of the accused, at the stage of charge.

(3.) Despite the fact that no presumption for an offence under Section 13(1)(e) PC Act is available, the Learned Special Judge observed that since the Petitioner was involved in a case of accepting bribe of Rs. 10,00,000/-, it was quite possible that he was in possession of assets disproportionate to his known sources of income. It is contended that the Courts can only presume whatever is permitted by the Statute and in the absence of any statutory presumption prescribed no such presumption can be raised. In the present case, the Petitioner has been intimating about his ancestral property to the CBI, which was his departmental authority, and even that material which was in possession of the CBI itself has been ignored, thus causing serious prejudice to the Petitioner . Further there is no requirement to declare the movable properties to the Department as the Rule regarding the same has been kept in abeyance since its inception in 1973. Reliance is placed on Rule 80 of the CCS Conduct Rules in this regard.