RESHMA DEVI Vs. THE STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel for the petitioner and Mr. Ramakant Sharma, learned senior counsel assisted by Mr. Santosh Kumar Pandey, for the Vigilance. The present application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code') has been filed against the order dated 12.11.2012 passed in Special Case No. 65 of 2006, arising out of Vigilance P.S. Case No. 78 of 2006 by which the application filed for release of Rs. 2,81,500/- seized from the residential house of the petitioner in connection with Special Case No. 65 of 2006/Vigilance P.S. Case No. 78 of 2006, has been rejected.

(2.) Learned counsel for the petitioner submits that the application for release of the money has been filed by the petitioner, from whose house the aforesaid money was recovered and seized on the ground that it belonged to her son-in-law who was accused in Special Case No. 65 of 2006/Vigilance P.S. Case No. 78 of 2006, and was caught in a trap case while accepting bribe. It is submitted that the recovery was from the house of the petitioner and the son-in-law only used to live there in a room. Learned counsel submits that the impugned order has been passed only on the ground that investigation on the point of lodging case against the accused for disproportionate assets is going on. It is submitted that such ground is not contemplated in law and is erroneous. It is his contention that only pursuant to a substantial F.I.R. being lodged, the police has any power to investigate. For such proposition, learned counsel has relied upon a decision of the Hon'ble Supreme Court in the case of Amitbhai Anilchandra Shah v. Central Bureau of Investigation, 2013 2 PLJR(SC) 373, the relevant being at paragraph 52(b). It is the contention of learned counsel that on the day when the application for release has been rejected i.e., 12.11.2012, there was no case for disproportionate assets pending and thus the ground that investigation on the point of lodging such case is going on, cannot be sustained. Learned counsel has referred to Sections 2(g) and (h) of the Code and submits that enquiry other than a trial conducted under the Code relates to one by a Magistrate or Court which in the present case is not there and also that investigation includes all the proceedings under the Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf, which also is not the case here. Learned counsel submits that the police under Section 154 of the Code are supposed to first lodge an F.I.R. if the information available to them discloses a cognizable offence and thereafter to start investigation. In the present case, since money was recovered in Special Case No. 65 of 2006/Vigilance Case No. 78 of 2006 and charge-sheet has also been submitted in January, 2006 itself, without there being any lodging of a case/F.I.R. for disproportionate assets, the prayer for release of money in favour of the petitioner ought to have been allowed. Learned counsel has further submitted that even for lodging a case under the Prevention of Corruption Act, 1988 (hereinafter referred to as the 'P.C. Act') the procedure which has to be followed is under the Code which mandates that first an F.I.R. has to be lodged before investigation can begin but prior to such lodging of F.I.R. there cannot be any kind of investigation as there is no such provision in the Code. Learned counsel submits that in the trap case only Rs. 60,000/- was recovered which was alleged to be bribe taken by the son-in-law of the petitioner but the amount of Rs. 2,81,500/- was not a subject matter of the said trap case.

(3.) Learned counsel for the Vigilance submits that both the applications before the Court as well as the present petition under Section 482 of the Code are misplaced for the simple reason that the money the petitioner seeks to be released in her favour has been recovered at the behest of her son-in-law after he was caught in the trap case and taken to the house in question. It is further submitted that the said amount has been reflected in the seizure list prepared in the Special Case No. 65 of 2006/Vigilance Case No. 78 of 2006 and thus there was no occasion for a substantive case to be lodged as far as the petitioner is concerned. It is submitted that on the basis of materials gathered during the investigation of the substantive case it has come to light that the son-in-law of the petitioner has acquired disproportionate assets and thus in the background of the same, a substantive case alleging disproportionate assets has been lodged on 30th January, 2013. It is submitted that the amount recovered on the basis of search made by the Vigilance pursuant to the petitioner having been caught in a trap case, the release in favour of the petitioner of the amount would tantamount to the Court declaring that such money belonged to the petitioner and not to her son-in-law, which at the present stage is not in the scheme of things since the same has to be proved in a proper trial. It is further submitted that once a substantive case has been lodged for disproportionate assets under the P.C. Act, the amount is the subject matter of that case and its release for the present shall not be in the interest of justice. Learned counsel further submits that Section 13(1)(e) of the P.C. Act read with Section 106 of the Indian Evidence Act, 1872 clearly stipulates that the burden of proving of a fact especially within the knowledge of the person lies upon him and thus in the present case, when the recovery has been pursuant to search conducted after the petitioner (sic-son-in-law?) was caught taking bribe, the onus will lie on him as well as anyone else who claims that the money belongs to him or her. In the present case without the said onus being discharged, this Court, according to learned counsel for the Vigilance, ought not to allow the prayer of the petitioner.