K VEERASWAMI Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS petition is filed under Sec. 482, Code of Criminal procedure to quash the C. C. No. 46 of 1977 on the file of the Special Judge, Madras .

(2.) THE petitioner is the former Chief Justice of this court from 1. 5. 1969 and retired with effect from 8. 4. 1976. THE First information Report was registered against him for the offence under Sec. 5 (2)read with Secs. 5 (1) (b), 5 (1) (d) and 5 (1) (e) of Prevention of Corruption Act, hereinafter referred to as Act 1947, by the Central Bureau of Investigation (C. B. I.) Police, New Delhi, on 24. 2. 1976. THErefore he went on leave preparatory to retirement, 9. 3. 1976 and retired on 8. 4. 1976. Charge-sheet was filed against him before the Special Judge, Madras on 15. 12. 1977 in C. C. No. 46 of 1977 for the offences under Sec. 5 (1) (e) of the act, 1947. THEreafter, the petitioner filed petition under Sec. 482, Code of criminal Procedure in Crl. M. P. No. 265 of 1978 to quash the proceedings in C. C. No. 46 of 1977 on certain grounds. THE Full Bench of this Court, elaborately considering the grounds raised by the petitioner for quashing the proceedings, has dismissed it. Against that order of dismissal, the petitioner preferred an appeal before the Supreme Court in C. A. No. 400 of 1979. THE Constitution Bench of the Supreme Court consisting of 5 Judges upheld the view of this Court by dismissing the appeal and directed for early disposal of the criminal case pending before the Special Judge, Madras. THE petitioner thereafter has come forward again with this petition under Sec. 482, Code of Criminal procedure to quash the C. C. No. 46 of 1977 on the following grounds: 1. THE police report under Sec. 173, Code of Criminal procedure has emerged as a fabrication of false allegation two years after the first Information Report without giving any opportunity to the petitioner to account for the alleged disproportionate assets, which is violative of Arts. 14, 19 and 21 of the Constitution of India. 2. THE comparison of the First Information Report with police report shows the abuse of process of law by the investigating machinery. 3. THEre is lot of variance between the First Information report and the report with regard to the alleged investment and the income. 4. In the First Information Report, the incomes is deflated and the assets and expenses are inflated. 5. No offence of criminal misconduct is made out within the meaning of Sec. 5 (1) (e) of the Act, 1947. 6. THEre are no materials ex facie to support the corruption charge. 7. THE inability to account for the disproportionate asset is not an ipso facto proof for criminal misconduct. 8. Unless the inability to account the income is involved with mens rea of moral turpitude, it will not be an offence and the police report does not disclose such an element. 9. As long as inability to account is not inconsistent with integrity and the absence of moral turpitude, offence under Sec. 5 (1) (e)of the Act of 1947, is not made out. 10. Within the meaning of Sec. 5 (1) (e) of the Act, enjoined under Sec. 214, Code of Criminal Procedure police report does not disclose the offence. 11. Each item or any variation of the rest of the items in the police report for showing the disproportionate assets, is consistent on the face of it with propriety and bona fide. 12. THE accused of offence should have been first called upon to account for the alleged disproportionate property before accusation and only when he was unable to satisfactorily account, he could be prosecuted. 13. As the inability, to satisfactorily account the property is a test to the criminal misconduct, it has got first to be proved by the prosecution. As that being not the allegation, the offence is not made out. 14. Without giving opportunity to satisfactorily account the pecuniary sources, making assertion of allegation in the First Information report or police report does not attract the offence. 15. As Sec. 5 (1) (e) of the Act, 1947 also is not requiring such opportunity being given to explain the pecuniary sources, it is unreasonable, arbitrary and violative of the principles of natural justice under Arts. 14, 19 and 21 of the Constitution. 16. As the First Information Report or the police report lacks of factual averments namely the essential ingredients of the offence, the prosecution has to be quashed. 17. As criminal misconduct is not defined by the Act, 1947, none can be punished except for a legally defined offence and as the first Information Report and the police report disclose no such wrong, the prosecution is illegal. 18. As the misconduct is a term that implies wrongful intention, the misconduct would mean improper conduct and that being so, inability to account which will amount to criminal misconduct, alone will constitute the offence. 19. Neither the First Information Report nor the police report shows any criminal misconduct involving moral turpitude and the mere inability to satisfactorily account, does not ipso facto an offence under Sec. 5 (1) (e)of the Act, in the absence of allegation and proof of correct motive or intention. 20. As the gist of Sec. 5 (1) (e) of the Act mentions only the inability to satisfactorily account, de hors intent in the nature of corruption, it is liable to be struck down as invalid as it would be violative of Art. 14 of the Constitution. 21. Each item in the police report to arrive at disproportion is consistent with the propriety and so too such items in combination or totality and so there will be no offence under Sec. 5 (1) (e) of the Act. 22. THE inability to account satisfactorily by itself is innocuous and does not attract the offence in the absence of evil or corrupt intention. 23. Starting of a trial after the delay of 16 years is an abuse of process of court and is violative of Sec. 309, Code of Criminal procedure and of the fundamental rights to speedy trial.

(3.) ON the ratio of these decisions, it was argued by the learned Additional Solicitor General that all the points except the one relating to the delay were available to the petitioner even when he filed the previous petition Crl. M. P. No. 265 of 1978 and even if he had not raised all these points now raised, when the Bench of this Court has found that the proceedings in C. C. No. 46 of 1977 is maintainable and cannot be quashed, the same is binding on the petitioner, that too when the Supreme Court also has affirmed the order of dismissal of the petition filed by the petitioner and therefore this petition is abuse of process of the court.