SHIPRA KUMAR Vs. STATE OF ORISSA

JUDGEMENT

(1.) The petitioner, who is the wife of a State Bureaucrat, files this application seeking to quash the FIR in Bhubaneswar Vigilance P.S. Case No. 62 of 13.11.2003 corresponding to VGR No. 63 of 2003 and the entire proceeding pending in the Court of learned Special Judge, Bhubaneswar for the offence under Section 13(2) read with Section 13(1)(e) and Section 12 of the Prevention of Corruption Act, 1988 and Section 120-B of the Indian Penal Code. The short fact of the case in hand is that the petitioner's husband Vinod Kumar, IAS, Additional Secretary to the Government of Odisha in the School and Mass Education Department was found to be in possession of assets in his name and in the name of his wife, Shipra Kumar disproportionate to his known source of income to the tune of Rs. 89,68,970/-, which is 241% of his income as per the statement given in the FIR. It was found that Vinod Kumar joined Government service in the Indian Administrative Service cadre on 21.8.1989 and at the time of lodging of the FIR, he was discharging his duties as Additional Secretary to the Government of Odisha, School and Mass Education Department since 16.5.20.01. He started a Beauty Parlour-cum-Health Club in the name and style of 'BODY STEPS' in VIP Area, Nayapalli, Bhubaneswar during 1998 in the name of the his wife and sold the same to one Aswin Kumar Patnaik on 26.5.2001 for Rs. 5,50,000/-. He also started a Beauty Parlour in the name and style of 'FEMI GRACE', Janpath, Kharvel Nagar, Bhubaneswar on 2.3.2001, which was closed since May, 2002. Out of his two daughters, the elder one is reading in Class IX in Welham Girls School, Dehradun, Uttaranchal and the second daughter is reading in Glass V in Delhi Public School, Kalinga at Adhalia, Fulnakhara, Cuttack. During enquiry, taking into consideration the net salary income from the Health Club, Beauty Parlour in the name of his wife, agricultural income from the landed property said to have been purchased in the name of Shipra Kumar, loan from CRHDG, Union Bank of India, HDFC, sale proceeds of BODY STEPS, the total probable income of Vinod Kumar during the period from 21.8.1989 to 23.10.2003 comes to Rs. 37,21,000.00. So also the probable expenditure towards food, clothing, repayment of loan investment in BODY STEPS, FEMI GRACE, Educational expenses, Telephone, Electricity, Air Travel, Car conveyance etc. come to Rs. 42,02,772.00 On 23.10.2003 at 6 A.M. when the Vigilance Search party arrived in the Government quarters of Vinod Kumar in the VIP Colony, Bhubaneswar, his wife Shipra Kumar did not open the lock of entrance grill door and told that Vinod Kumar, IAS was out on tour to Puri and she went inside the house and did not respond for about 10 minutes. It was found that smoke was coming out through the vent of the exhaust fan of the kitchen room and smell of burning of papers was felt. Only after repeated knocks on rear side door, the petitioner opened the same. On entering, it was found that a heap of documents and papers was burning on the gas stove of the kitchen and the fire was put off. It was found that Vinod Kumar was found sitting on the commode of the attached bath room of the bed room and the torn documents such as cheque books, papers relating to shares, bank deposits were found inserted inside the commode as well as the cistern of the bath room, which were recovered with the help of the plumber of P.H.D. Thus, it was found that Vinod Kumar and his wife, Shipra Kumar, the petitioner herein, had intentionally attempted to destroy the incriminating materials pertaining to possession of disproportionate assets.

(2.) Mr. Pitambar Acharya, learned Sr. Advocate appearing for the petitioner stated that the provisions of the Prevention of Corruption Act, 1988, hereinafter to be referred to as "P.C. Act", in short, is not applicable in case of the petitioner as she is not a public servant within the meaning of Section 2(c) of the P.C. Act. In order to attract the provisions of P.C. Act, under Section 13 a person must be a public servant within the meaning of Section 2(c) and as such, on perusal of the FIR, no such allegations have been made out and the police had submitted charge-sheet in which it is stated that no case is made out against the petitioner. Apart from the same, he stated that due to enactment of Orissa Special Courts Act, 2006, hereinafter to be referred to as "Act, 2006" by virtue of the notification issued and published in Official Gazette on 10.7.2012, the case has been transferred to the Special Court so far as it relates to the petitioner's husband. Therefore, he urged that initiation of the proceeding against the petitioner cannot be sustainable and is liable to be quashed. In support of his contention, he relied upon the judgments of the apex Court in Viswanath Chaturvedi v. Union of India and others, 2007 4 SCC 380, which has undergone a review under Article 137 read with Article 145 of the Constitution of India reported in Akhilesh Yadav v. Viswanath Chaturvedi and others, 2013 2 SCC 1 in which the case of Dimple Yadav v. Viswanath Chaturvedi and others has been considered. Mr. Acharya learned Sr. counsel referring to paragraphs 2, 6, 7, 12, 21 and 35 of the aforesaid judgment urged that Dimple Yadav had neither held any office nor Government post and essentially a private person notwithstanding her proximity with Akhilesh Yadav and Mulayam Singh Yadav and on consideration of her case, the apex Court had taken a view that the investigation conducted against her on the issue of amassing wealth beyond her known source of income is liable to be dropped. The review petition so far as Dimple Yadav is concerned has been allowed and the investigation conducted by CBI has been dropped. Referring to these paragraphs, Mr. Acharya urged that the petitioner being not a public servant, the proceeding should be dropped in view of the ratio decided by the apex Court in the judgments referred to supra. He further stated that since Section 5 of the Act, 2006 requires declaration of cases to be dealt with under the said Act, such declaration having not been made and only the case of her husband has been transferred to the special Court by virtue of the notification dated 10.7.2012, the proceeding so initiated as against the petitioner should be quashed.

(3.) Mr. Pani, learned Standing counsel appearing for the Vigilance Department, opposed the contention raised by Mr. Acharya and stated that this is not the stage where the proceeding can be quashed by invoking the power under Section 482, Cr.P.C. and as such, the claim of the petitioner cannot be sustainable. Mr. Pani referring to Section 6(2) of the Act, 2006 stated that where any declaration made under Section 5 relates to an offence in respect of which a prosecution has already been instituted and the proceedings in relation thereto are pending in a Court other than Special Court, such proceeding shall, notwithstanding anything contained in any other law for the time being in force, stand transferred to Special Court for trial of the offence in accordance with this Act. Therefore, he stated that by the time the Act, 2006 came into force, the prosecution had already been launched against the petitioner and the proceeding in relation thereto, is pending for consideration by the special Court and therefore, notwithstanding anything contained in any other law for the time being in force, the same can be transferred to the special Court for trial of the offence. Thus, the case of the petitioner is protected under Sub-section (2) of Section 6 of the Act, 2006. It is further reiterated that charge-sheet has been submitted by the police after causing a full-dress investigation where it is stated that prima facie case of criminal misconduct is made out under Section 13(2) read with Section 13(1)(e) of the P.C. Act read with Section 109, IPC against Vinod Kumar and his wife, Shipra Kumar. Even though Shipra Kumar is not a public servant, but she can be considered as an abettor in view of the provisions contained in Section 109, IPC. By virtue of the charge-sheet submitted, an abettor can only be tried along with the principal accused and he has also referred to Section 7 of the Act, 2006, which speaks about jurisdiction of Special Courts for trial of offences, to mean a Special Court shall have jurisdiction to try any person alleged to have committed the offence in respect of which a declaration has been made under Section 5, either as principal, conspirator or abettor and for all the other offences and accused persons as can be jointly tried therewith at one trial in accordance with the Code. Therefore, he stated that being an abettor, the petitioner can be tried in view of Section 7 of the Act, 2006. Mr. Pani further referring to Section 9 of the Act, 2006, which states about appeal against the orders of the Special Court, urged that notwithstanding anything contained in the Code an appeal shall lie from any judgment and sentence of a Special Court or order of a Special Court to the High Court of Orissa both on facts and law. Referring to Sub-section (2) of Section 9 of the Act, 2006, he stated that except as aforesaid, no appeal or revision shall lie in any Court from any judgment, sentence or order of a Special Court, thereby the statute prohibits to file any application in the garb of appeal or revision against any order passed by the Special Court. Thus, the petitioner has invoked the jurisdiction under Section 482, Cr.P.C. to quash the proceeding just to bypass the provision contained in the Act, 2006. Mr. Pani also distinguished the case cited by Mr. Acharya so far as it relates to the case of Dimple Yadav stating that she was not an abettor in the said case and therefore, the said judgment cannot be taken into consideration in the present context. Mr. Pani referring to the judgment in P. Nallammal and another v. State, represented by Inspector of Police, 1999 6 SCC 559 stated that the trial of a non-public servant for abatement of offence under Section 13(1)(e) along with the public servant by the Special Judge is not barred. He also referred to the judgment in Bharat Lal and another v. Central Bureau Investigation,2006 2 Crimes 209, where the judgment of the apex Court in P. Nallammal and another has been referred to and the fact of that case is akin to the fact of the present case where the High Court of Chhatisgarh has held that any person who abates commission of offence by the public servant under Section 13(1)(e) of the P.C. Act is liable to be prosecuted under the Act, 2006.