# STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v. R. SOUNDIRARASU ETC

- **Citation:** [2022] 7 S.C.R. 630
- **Court:** Supreme Court of India
- **Decided:** 2022-09-05
- **Case number:** Criminal Appeal Nos. 1452-1453 of 2022
- **Bench:** Dinesh Maheshwari, J. B. Pardiwala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-through-deputy-superintendent-of-police-v-r-soundirarasu-etc-36335
- **Pages:** 56

## Headnote

Code of Criminal Procedure, 1973: ss.239, 397, 401 -
Discharge of accused - Respondent No.1 was serving as Motor
Vehicle Inspector during the check period - Respondent No. 2 is
his wife who is a commerce graduate and is claiming to have a
separate source of income and paying the income tax from 1990
onwards - FIR registered against Respondent No.1 for offences u/
s 13(2) r/w 13(1)(e) PC Act r/w s.109 IPC - During investigation,
role of his wife i.e. Respondent No.2 surfaced as an abettor -
Charge sheet filed in the Court of the Special Judge - Respondents
filed petition u/s.239 for discharge - Special Judge rejected the
petition and held that there was a prima facie case against the
accused persons to put them to trial for alleged offence and charges
levelled against them cannot be said to be groundless so as to
discharge them from prosecution - Respondents filed revision
applications before High Court - High Court discharged the
respondents - On appeal, held: s.13(1)(e) of the PC Act makes a
departure from the principle of criminal jurisprudence that the
burden will always lie on the prosecution to prove the ingredients
of the offences charged and never shifts on the accused to disprove
the charge framed against him - legal effect of s.13(1)(e) is that it
is for the prosecution to establish that the accused was in possession
of properties disproportionate to his known sources of income but
the term "known sources of income" would mean the sources known
to the prosecution and not the sources known to the accused and
within the knowledge of the accused - It is for the accused to
account satisfactorily for the money/assets in his hands - The onus
in this regard is on the accused to give satisfactory explanation -
accused cannot make an attempt to discharge this onus upon him at
the stage of s.239 - The circumstances emerging from the record of
the case indicate the involvement of the accused persons in the
alleged offence - It cannot be said that the charge against the
[2022] 7 S.C.R. 630
630
A
B
C
D
E
F
G
H
631
accused persons was groundless - Special Court directed to frame
charges against the accused persons and put them to trial - Penal
Code,1860 - s.109 - Evidence Act, 1872 - s.106 - Prevention of
Corruption Act, 1988 - ss.13(2), 13(1)(e).
Prevention of Corruption Act, 1988: Known sources of income
- Defined - It refers to the sources known to the prosecution and
not to the accused.
Prevention of Corruption Act, 1988: The onus or burden is
on the accused to satisfactorily explain and account for the assets
found to be possessed by the public servant.
Prevention of Corruption Act, 1988: Whether the investigating
officer before filing FIR should consider explanation offered by
the accused - Held: The accused public servant does not have a
right to be afforded a chance to explain the alleged disproportionate
assets to the investigating officer before the filing of a chargesheet,
a similar right cannot be granted to the accused before the filing of
an FIR by making a preliminary inquiry mandatory.
Code of Criminal Procedure, 1973: Stage of charge framing
- Approach of Court - Court has to form a presumptive opinion as
to the existence of the factual ingredients constituting the offence
alleged - Court is not required to go deep into the probative value
of the materials on record.
Code of Criminal Procedure, 1973: s.239 - Prima facie case
u/s.239 - If the Magistrate considers the charge against the accused
to be groundless, he shall discharge the accused - The word
'groundless' means that there must be no ground for presuming that
the accused has committed the offence and that the materials placed
before the Court do not make out or are not sufficient to make out
a prima facie case against the accused - If no prima facie case
regarding the commission of any offence is made out, it would
amount to a charge being groundless.
Code of Criminal Procedure, 1973: Revisional powers of High
Court - Ambit and scope of - Held: Revisional

## Text

_Characters 0–39,915 of 124,951. This is a partial read: ask again with offset=39915 for what follows._

A
B
C
D
E
F
G
H
630
SUPREME COURT REPORTS
[2022] 7 S.C.R.
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE
v.
R. SOUNDIRARASU ETC.
(Criminal Appeal Nos. 1452-1453 of 2022)
SEPTEMBER 05, 2022
[DINESH MAHESHWARI AND J. B. PARDIWALA. JJ.]
Code of Criminal Procedure, 1973: ss.239, 397, 401 -
Discharge of accused - Respondent No.1 was serving as Motor
Vehicle Inspector during the check period - Respondent No. 2 is
his wife who is a commerce graduate and is claiming to have a
separate source of income and paying the income tax from 1990
onwards - FIR registered against Respondent No.1 for offences u/
s 13(2) r/w 13(1)(e) PC Act r/w s.109 IPC - During investigation,
role of his wife i.e. Respondent No.2 surfaced as an abettor -
Charge sheet filed in the Court of the Special Judge - Respondents
filed petition u/s.239 for discharge - Special Judge rejected the
petition and held that there was a prima facie case against the
accused persons to put them to trial for alleged offence and charges
levelled against them cannot be said to be groundless so as to
discharge them from prosecution - Respondents filed revision
applications before High Court - High Court discharged the
respondents - On appeal, held: s.13(1)(e) of the PC Act makes a
departure from the principle of criminal jurisprudence that the
burden will always lie on the prosecution to prove the ingredients
of the offences charged and never shifts on the accused to disprove
the charge framed against him - legal effect of s.13(1)(e) is that it
is for the prosecution to establish that the accused was in possession
of properties disproportionate to his known sources of income but
the term "known sources of income" would mean the sources known
to the prosecution and not the sources known to the accused and
within the knowledge of the accused - It is for the accused to
account satisfactorily for the money/assets in his hands - The onus
in this regard is on the accused to give satisfactory explanation -
accused cannot make an attempt to discharge this onus upon him at
the stage of s.239 - The circumstances emerging from the record of
the case indicate the involvement of the accused persons in the
alleged offence - It cannot be said that the charge against the
[2022] 7 S.C.R. 630
630
A
B
C
D
E
F
G
H
631
accused persons was groundless - Special Court directed to frame
charges against the accused persons and put them to trial - Penal
Code,1860 - s.109 - Evidence Act, 1872 - s.106 - Prevention of
Corruption Act, 1988 - ss.13(2), 13(1)(e).
Prevention of Corruption Act, 1988: Known sources of income
- Defined - It refers to the sources known to the prosecution and
not to the accused.
Prevention of Corruption Act, 1988: The onus or burden is
on the accused to satisfactorily explain and account for the assets
found to be possessed by the public servant.
Prevention of Corruption Act, 1988: Whether the investigating
officer before filing FIR should consider explanation offered by
the accused - Held: The accused public servant does not have a
right to be afforded a chance to explain the alleged disproportionate
assets to the investigating officer before the filing of a chargesheet,
a similar right cannot be granted to the accused before the filing of
an FIR by making a preliminary inquiry mandatory.
Code of Criminal Procedure, 1973: Stage of charge framing
- Approach of Court - Court has to form a presumptive opinion as
to the existence of the factual ingredients constituting the offence
alleged - Court is not required to go deep into the probative value
of the materials on record.
Code of Criminal Procedure, 1973: s.239 - Prima facie case
u/s.239 - If the Magistrate considers the charge against the accused
to be groundless, he shall discharge the accused - The word
'groundless' means that there must be no ground for presuming that
the accused has committed the offence and that the materials placed
before the Court do not make out or are not sufficient to make out
a prima facie case against the accused - If no prima facie case
regarding the commission of any offence is made out, it would
amount to a charge being groundless.
Code of Criminal Procedure, 1973: Revisional powers of High
Court - Ambit and scope of - Held: Revisional power can only be
exercised to correct manifest error of law or procedure which would
occasion injustice, if it is not corrected - The revisional power cannot
be exercised in a casual or mechanical manner - Revisional power
cannot be equated with appellate power - A revisional court cannot
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v.
R. SOUNDIRARASU ETC.
A
B
C
D
E
F
G
H
632
SUPREME COURT REPORTS
[2022] 7 S.C.R.
undertake meticulous examination of the material on record as it is
undertaken by the trial court or the appellate court - This power
can only be exercised if there is any legal bar to the continuance of
the proceedings or if the facts as stated in the charge sheet are
taken to be true on their face value and accepted in their entirety
do not constitute the offence for which the accused has been charged
- It is conferred to check grave error of law or procedure.
Allowing the appeals, the Court
HELD : 1. The expression "known sources of income"
refers to the sources known to the prosecution, the expression
"for which the public servant cannot satisfactorily account" refers
to the onus or burden on the accused to satisfactorily explain and
account for the assets found to be possessed by the public servant.
This burden is on the accused as the said facts are within his
special knowledge. The explanation to Section 13(1)(e) is a
procedural Section which seeks to define the expression "known
sources of income" as sources known to the prosecution and not
to the accused. The explanation applies and relates to the mode
and manner of investigation to be conducted by the prosecution,
it does away with the requirement and necessity of the
prosecution to have an open, wide and rowing investigation and
enquire into the alleged sources of income which the accused
may have. It curtails the need and necessity of the prosecution
to go into the alleged sources of income which a public servant
may or possibly have but are not legal or have not been declared.
The undeclared alleged sources are by their very nature are
expected to be known to the accused only and are within his
special knowledge. The effect of the explanation is to clarify and
reinforce the existing position and understanding of the
expression "known sources of income" i.e. the expression refers
to sources known to the prosecution and not sources known to
the accused. The second part of the explanation does away with
the need and requirement for the prosecution to conduct an open
ended or rowing enquiry or investigation to find out all alleged/
claimed known sources of income of an accused who is
investigated under the PC Act, 1988. The prosecution can rely
upon the information furnished by the accused to the authorities
A
B
C
D
E
F
G
H
633
under law, rules and orders for the time being applicable to a
public servant. No further investigation is required by the
prosecution to find out the known sources of income of the accused
public servant. [Para 41][666-G-H; 667-A-E]
2. In trial of a warrant case, instituted on a police report,
the provisions for discharge are to be governed as per the terms
of Section 239 which provide that a direction for discharge can
be made only for reasons to be recorded by the court where it
considers the charge against the accused to be groundless. As
per the provisions under Section 239 what needs to be considered
is whether there is a ground for presuming that the offence has
been committed and not that a ground for convicting the accused
has been made out. At that stage, even strong suspicion founded
on material which leads the Court to form a presumptive opinion
as to the existence of the factual ingredients constituting the
offences alleged would justify the framing of charge against the
accused in respect of that offence, and it is only in a case where
the Magistrate considers the charge to be groundless, he is to
discharge the accused after recording his reasons for doing so.
Section 239 envisages a careful and objective consideration of
the question whether the charge against the accused is groundless
or whether there is ground for presuming that he has committed
an offence. What Section 239 prescribes is not, therefore, an
empty or routine formality. It is a valuable provision to the
advantage of the accused, and its breach is not permissible under
the law. But if the Judge, upon considering the record, including
the examination, if any, and the hearing, is of the opinion that
there is "ground for presuming" that the accused has committed
the offence triable under the chapter, he is required by Section
240 to frame in writing a charge against the accused. The order
for the framing of the charge is also not an empty or routine
formality. It is of a far reaching nature, and it amounts to a decision
that the accused is not entitled to discharge under Section 239,
that there is,ground for presuming that he has committed an
offence triable under Chapter XIX and that he should be called
upon to plead guilty to it and be convicted and sentenced on that
plea, or face the trial. [Paras 59 & 60][677-D-H; 678-A-C]
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v.
R. SOUNDIRARASU ETC.
A
B
C
D
E
F
G
H
634
SUPREME COURT REPORTS
[2022] 7 S.C.R.
3. Section 239 has to be read along with Section 240 of the
CrPC. If the Magistrate finds that there is prima facie evidence
or the material against the accused in support of the charge,he
may frame charge in accordance with Section 240 of the CrPC.
But if he finds that the charge (the allegations or imputations)
made against the accused does not make out a prima facie case
and does not furnish basis for framing charge, it will be a case of
charge being groundless, so he has no option but to discharge
the accused. Where the Magistrate finds that taking cognizance
of the offence itself was contrary to any provision of law, like
Section 468 of the CrPC, the complaint being barred by limitation,
so he cannot frame the charge, he has to discharge the accused.
Indeed, in a case where the Magistrate takes cognizance of an
offence without taking note of Section 468 of the CrPC, the most
appropriate stage at which the accused can plead for his discharge
is the stage of framing the charge. He need not wait till completion
of trial. The Magistrate will be committing no illegality in
considering that question and discharging the accused at the stage
of framing charge if the facts so justify.The real test for
determining whether the charge should be considered groundless
under Section 239 of the CrPC is that whether the materials are
such that even if unrebutted make out no case whatsoever, the
accused should be discharged under Section 239 of the CrPC.
The trial court will have to consider, whether the materials relied
upon by the prosecution against the applicant for the purpose of
framing of the charge, if unrebutted, make out any case at
all.[Paras 68 & 69][680-D-H; 681-A]
4. The revisional power cannot be exercised in a casual or
mechanical manner. It can only be exercised to correct manifest
error of law or procedure which would occasion injustice, if it is
not corrected. The revisional power cannot be equated with
appellate power. A revisional court cannot undertake meticulous
examination of the material on record as it is undertaken by the
trial court or the appellate court. This power can only be exercised
if there is any legal bar to the continuance of the proceedings or
if the facts as stated in the charge-sheet are taken to be true on
their face value and accepted in their entirety do not constitute
the offence for which the accused has been charged. It is conferred
to check grave error of law or procedure. [Para 76][683-F-G]
A
B
C
D
E
F
G
H
635
5. Section 13(1)(e) of the Act 1988 makes a departure from
the principle of criminal jurisprudence that the burden will always
lie on the prosecution to prove the ingredients of the offences
charged and never shifts on the accused to disprove the charge
framed against him. The legal effect of Section 13(1)(e) is that it
is for the prosecution to establish that the accused was in
possession of properties disproportionate to his known sources
of income but the term "known sources of income" would mean
the sources known to the prosecution and not the sources known
to the accused and within the knowledge of the accused. It is for
the accused to account satisfactorily for the money/assets in his
hands. The onus is on the accused to give satisfactory explanation.
The accused cannot make an attempt to discharge this onus upon
him at the stage of Section 239 of the CrPC. At the stage of Section
239 CrPC, the Court has to only look into the prima facie case
and decide whether the case put up by the prosecution is
groundless.[Para 80][684-F-H; 685-A]
6. The circumstances emerging from the record of the case,
prima facie, indicate the involvement of the accused persons in
the alleged offence. Having regard to the materials on record, it
cannot be said that the charge against the accused persons is
groundless. There are triable issues in the matter. If there are
triable issues, the Court is not expected to go into the veracity
of the rival versions.The impugned orders passed by the High
Court discharging the accused persons from the prosecution are
hereby set aside. The Special Court shall frame charge against
the accused persons in accordance with law and put them to trial.
[Paras 81 & 82][685-B-D]
State of Maharashtra v. Wasudeo Ramchandra
Kaidalwar (1981) 3 SCC 199 : [1981] 3 SCR 675; N.
Ramakrishnaiah v. State of A.P. 2009 Crl.L.J. 1767;
Central Bureau of Investigation (CBI) and Anr. v.
Thommandru Hannah Vijayalakshmi @ T.H.
Vijayalakshmi and Anr. 2021 SCC OnLine SC 923;
K. Veeraswami v. Union of India (1991) 3 SCC 655 :
[1991] 3 SCR 189; Onkar Nath Mishra and Others v.
State (NCT of Delhi) and Another (2008) 2 SCC 561 :
[2007] 13 SCR 716; State of Maharashtra v. Som Nath
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v.
R. SOUNDIRARASU ETC.
A
B
C
D
E
F
G
H
636
SUPREME COURT REPORTS
[2022] 7 S.C.R.
Thapa (1996) 4 SCC 659 : [1996] 1 Suppl. SCR 189;
State of M.P. v. Mohanlal Soni (2000) 6 SCC 338;
Sheoraj Singh Ahlawat and others v. State of Uttar
Pradesh and Another (2013) 11 SCC 476 : [2012] 10
SCR 1034; Century Spinning and Manufacturing Co.
Ltd. v. State of Maharashtra AIR 1972 SC 545,
Superintendent and Remembrancer of Legal Affairs,
West Bengal v. Anil Kumar Bhunja AIR 1980 SC 52 :
[1980] 1 SCR 323; Munna Devi v. State of Rajasthan
& Anr. (2001) 9 SCC 631 - relied on.
State of Orissa v. Debendra Nath Padhi (2005) 1 SCC
568 : [2004] 6 Suppl. SCR 460; State of Tamil Nadu by
Inspector of Police, Vigilance and Anti-Corruption v.
N. Suresh Rajan and Others (2014) 11 SCC 709 :
[2014] 1 SCR 135; Jagan M. Seshadriv. State of Tamil
Nadu, (2002) 9 SCC 639; Sajjan Singh v. State of
Punjab AIR 1964 SC 464 : [1964] 4 SCR 630; C.D.S.
Swami v. State, AIR 1960 SC 7 : [1960] 1 SCR 461; V.
C. Shukla v. State through CBI AIR 1980 SC 962 :
[1980] 2 SCR 380; K. Ramakrishna and Others v. State
of Bihar and Another (2000) 8 SCC 547; State by
Karnataka Lokayukta, Police Station, Bengaluru v. M.
R. Hiremath (2019) 7 SCC 515 : [2019] 8 SCR 713;
Asian Resurfacing of Road Agency Pvt. Ltd. v. Central
Bureau of Investigation (2018) 16 SCC 299 : [2018] 2
SCR 1045 - referred to.
Case Law Reference
[2004] 6 Suppl. SCR 460
referred to
Para 22
[2014] 1 SCR 135
referred to
Para 24
[1981] 3 SCR 675
relied on
Para 29
(2002) 9 SCC 639
referred to
Para 35
[1964] 4 SCR 630
referred to
Para 39
[1960] 1 SCR 461
referred to
Para 39
[1991] 3 SCR 189
relied on
Para 43
[2007] 13 SCR 716
relied on
Para 55
A
B
C
D
E
F
G
H
637
[1996] 1 Suppl. SCR 189
relied on
Para 55
(2000) 6 SCC 338
relied on
Para 55
[2012] 10 SCR 1034
relied on
Para 58
[1980] 2 SCR 380
referred to
Para 60
AIR 1972 SC 545
relied on
Para 64
[1980] 1 SCR 323
relied on
Para 66
(2000) 8 SCC 547
referred to
Para 70
[2019] 8 SCR 713
referred to
Para 71
(2001) 9 SCC 631
referred to
Para 75
[2018] 2 SCR 1045
referred to
Para 77
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 1452-1453 of 2022.
From the Judgment and Order dated 27.04.2017 of the High Court
of Judicature at Madras in Criminal Revision Case Nos.702 and 703 of
2016.
V. Krishnamurthy, AAG, Dr. Joseph Aristotle S., Nupur Sharma,
Shobhit Dwivedi, Sanjeev Kumar Mahara, Ms. Richa Vishwakarma,
Advs. for the Appellant.
K. Radhakrishnan, Sr. Adv., D. L. Chidananda, R. Janarthanan,
S. Senthil Elangovan, S. Krishnamoorthy, K. Kumaravadivel, Advs. for
the Respondents.
The Judgment of the Court was delivered by
J. B. PARDIWALA, J.
1. Leave granted.
2. Since the issues raised in both the captioned appeals are the
same, those were heard analogously and are being disposed of by this
common judgment and order.
3. These appeals are at the instance of the State of Tamil Nadu
through the Deputy Superintendent of Police, Vigilance and AntiCorruption, Salem District, Tamil Nadu and are directed against the two
judgments and orders passed by the High Court of Madras dated
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v.
R. SOUNDIRARASU ETC.
A
B
C
D
E
F
G
H
638
SUPREME COURT REPORTS
[2022] 7 S.C.R.
27.04.2017 allowing the criminal revision applications preferred by the
respondents herein (original accused persons) discharging them from
the prosecution under Section 13(2) read with 13(1)(e) of the Prevention
of Corruption Act, 1988 (for short, "Act 1988") read with Section 109 of
the Indian Penal Code (for short, "the IPC").
FACTUAL MATRIX
4. The Respondents in these appeals are husband and wife. The
Respondent No.1 - R. Soundirarasu at the relevant point of time was
serving as a Motor Vehicle Inspector (Grade 1) at Namakkal during the
check period, i.e., from 01.01.2002 to 31.03.2004. The Respondent No.
2, namely, Suguna is the wife of the Respondent No. 1.
5. The Respondent No. 2 is a commerce graduate and claims to
be having a separate source of income. She was a partner in a partnership
firm running in the name of S.K. Mat Industries along with one R. Kumar
w.e.f. 23.10.1993. The partnership came to be dissolved on 31.03.2003,
and, thereafter she continued as a sole proprietor.
6. It is the case of the Respondent No. 2 that she has been paying
the income tax from 1990 onwards and her IT Returns are being
scrutinized by the appropriate authorities.
7. It appears from the materials on record that a First Information
Report (FIR) came to be registered against the Respondent No. 1 herein
dated 19.09.2005 at the Police Station, Vigilance and Anti-Corruption,
District Salem for the offences under the Act 1988 as enumerated above.
8. For better and effective adjudication of the present appeals,
we deem it necessary to reproduce the entire FIR as under:
"Column No. 12 in FIR Cr. No.9/AC/2005/SL/SU
Tr. R. Sundararasu was working as Motor Vehicle
Inspector Grade-1 at the office of the Regional Transport
Officer, Namakkal, Rasipuram and Sankari from March 98
to May 2000 to July 2002 and September 2002 to
September2004 respectively and again in Namakkal from
27.09.2004. He is a Public Servant as defined u/s 2 (C) of
Prevention of Corruption Act, 1988.
The accused Tr. R. Sundararasu, Motor Vehicle
Inspector Grade-1 hailed from an ordinary agricultural
family. He is a second son to his parents. Tr. Ramasamy and
A
B
C
D
E
F
G
H
639
Tmt. Krishnammal. He has got diploma in Mechnaical
Engineering and got B.E., degree by attending evening
classes. He got married one Suguna D/o Tr. Duraisamy of
Kavai on 12.2.90. He has got one son by name Sarankumar
who is studying VIIth standard in Holy Matriculation School,
Salem.
On receipt of credible information that the accused has
acquired and he is in possession of assets in the form of house
sites, lands, house building etc in his name and in the name
of his wife and father-in-law, worth more than his known
sources of income, a preliminary verification made, during
which the following information has come to notice.
As on 1.1.2002, the accused is found to have been in
possession of assets in his name and in the name of his wife
Tmt. Suguna, gold jewels, Silver ornaments, household
articles etc. by way of gift and purchase etc. all worth about
Rs. 3,75,250.00.
As on 29.2.2004, the accused is found to have been in
possession of properties and pecuniary resources in the name
of his wife Smt. Suguna, his father-in-law Thiru.Duraisamy
and his minor son Sarankumar of a total value of Rs.
18,41,680.00. These include, a part from the properties and
pecuniary resources in his possession as on 1.1.2002.
Additionally acquired properties and pecuniary resources
such as House Building and construction of house building.
During the period from 1.1.2002 and 29.2.2004, the
accused is found to have acquired the following properties:
(i)
Constructed a terraced house worth about Rs.7,99,500/- in the
name of his wife Tmt. Suguna at Door No.555, situated in
S.No.11/1266
of
Ganapathy
Village,
Ganapathypuram,
Coimbatore after demolishing the old terrace house.
(ii)
Purchased a terraced building worth Rs.8,61,270 /- with a plinth
area of 70 Sq. metre on the ground floor and 10 Sq. Metre on the
1st floor in Bodinaikanpatty village S.No.69/1-A1 in the name of
his father-in-law Tr.Duraisamy under Doc.No.499/2004 dt.
6.2.2004 of SRO, Sooramangalam and the same was transferred
in the name of Sarankumar, the minor son of the accused, by way
of Settlement Deed in Doc.No.645/2004, Dt. 16.02.2004 by the
said Tr.Duraisamy incurring a sum of Rs.5,160/- towards stamp
duty and registration fees.
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v.
R. SOUNDIRARASU ETC. [J. B. PARDIWALA, J.]
A
B
C
D
E
F
G
H
640
SUPREME COURT REPORTS
[2022] 7 S.C.R.
The Total value of the properties and pecuniary
resources acquired by the accused during the period from
1.1.2002 to 29.2.2004 has been tentatively estimated to be
Rs.14,66,430/-
Accused's wife Smt. Suguna is a house wife. She is found
to have had no sufficient sources of income of her own to
acquire the aforementioned assets. So also, Tr. Duraisamy,
the father-in-law of the accused appears to have had no
necessity for the purchase and transfer of the property in the
name of the grand son (son of the accused). Thus, the accused
appears to have acquired the above properties in the name
of aforesaid persons as his benami (benamis).
The total income of the accused and his family members
and expenditure of the accused and his family during the
above said period (i.e.1.1.2002 to 29.2.2004) have been
tentatively assessed as Rs.8,84,486 and 11,00, 198 respectively
and hence there was no likely savings for the above said
period and on the contrary there was an excess expenditure
over the income of the accused to the extent of
Rs.2,15,712/-.
There are grounds to believe that the aforesaid assets
are for beyond and disproportionate to the known sources of
income of the accused for the above said period to the extent
of Rs.16,82,142 (Rs.14,66,430+2,15,712).
The above information discloses an offence of criminal
misconduct by public servant punishable u/ s 13(2) r /w
13(1)(e) of prevention of Corruption Act, 1988, against the
accused and requires a detailed investigation.
I am therefore, registering a case in Cr.No.9/AC/2005/
SL/SU against the accused for the above said offence for the
purpose of taking up investigation.
(SdXXX)
(K.PERIYASAMY)
DSP, V&AC, Spl.Cell,
Salem."
A
B
C
D
E
F
G
H
641
9. It appears that vide the letter dated 16.10.2007 the investigating
officer called for the explanation from the Respondent No. 1 as regards
the allegations levelled in the FIR.
10. The Respondent No. 1 vide his letter dated 1.11.2007 offered
his explanation stating that he does not possess or had acquired any
assets disproportionate to the known source of his income. The
Respondent No. 1 also placed on record the income tax returns filed by
his wife from 1990 onwards and that of the partnership firm too from
1993.
11. It appears that in the course of investigation the role of the
Respondent No. 2 as the wife of the Respondent No. 1 also surfaced as
an abettor.
12. Upon conclusion of the investigation, the Investigating Agency
filed charge-sheet in the Court of the Special Judge, Salem for the offences
enumerated above. The filing of the charge-sheet culminated in the
registration of the Special Criminal Case No. 36/2008 in the Court of the
Special Judge, Salem.
13. In such circumstances referred to above, the Respondents
preferred Crl. M.P. Nos. 87 and 86 of 2014 resply under Section 239 of
the Code of Criminal Procedure (for short, 'the CrPC') seeking discharge
from the trial essentially on the ground of lack of any prima facie case
against them.
14. The Special Judge adjudicated both the aforesaid applications
filed by the respondents and thought fit to reject those by two separate
orders dated 29.03.2016. While rejecting the Crl. M.P. No. 86 of 2014
filed by the respondent No. 2 (wife of respondent No. 1), the Special
Judge observed as under :-
"15. Yet another ground urged by the petitioner is that the
income derived by the petitioner being partner in S.K. Mat
Industries and by doing money lending business was not given
due credit by the Investigating Officer and as such the decision
arrived at by the Investigating Officer that the petitioner has
no wherewithals to acquire the properties standing in her name
and described in Statement II and to treat the said properties
as the properties acquired by the 1st accused in the name of
the petitioner is totally wrong. The Investigating Officer in
his final report has categorically mentioned that no documents
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v.
R. SOUNDIRARASU ETC. [J. B. PARDIWALA, J.]
A
B
C
D
E
F
G
H
642
SUPREME COURT REPORTS
[2022] 7 S.C.R.
were produced during investigation, either by the petitioner
or her husband, to showcase the income derived by the
petitioner by doing money lending business. Even in the present
application there is no whisper in this regard by the petitioner.
The contentious issue as to whether the petitioner derived
income from S.K. Mat Industries and through money lending
business can be decided only during trial based on the
evidence placed before the court in this regard. Hence this
court decides that the above ground urged by the petitioner
is a pre-matured one and thus cannot be entertained at the
time of framing charges.
16. In the present case the total value of assets and pecuniary
resources held by the petitioner, her husband and son at the
end of the check-period has been computed by the
Investigating Officer at Rs.31,69,498/- as set out in Statement
II. During investigation the petitioner and her husband have
not produced any documents except the Income-Tax returns
of the petitioner to trace the source of income of the petitioner
to acquire the properties that stood recorded in her name
during the check-period. Hence the Investigating Officer has
proceeded to treat the properties standing in the name of the
petitioner and her minor son as the properties of the
petitioner's husband, the lst accused, which cannot be found
fault at this stage more so when the petitioner's husband has
not disclosed the acquisition of properties by his wife, the
petitioner herein, to the concerned Department as required
under Tamil Nadu Government Servants Conduct Rules.
Hence this court decides that, at this stage, there is no
substance in the contention' of the petitioner that the
methodology adopted by the Investigating Officer in
computing the value of the assets of the petitioner's husband
is erroneous.
x
x
x
x
x
18. The materials produced by the Investigating Officer along
with the final report prima facie disclose the existence of all
the ingredients essential to constitute the offence U / s 13 (2)
r/w 13 (2) r/w 13 (1) (e) of the Prevention of Corruption Act
read with Sec : 109 of the IPC alleged to have been committed
A
B
C
D
E
F
G
H
643
by the petitioner. Since the offence alleged against the
petitioner and her husband are grave in nature the petitioner
cannot be let scot free without facing trial and without
affording an opportunity to the prosecution to establish the
case during trial by adducing evidence.
19. Hence on a conspectus evaluation of all legal and factual
aspects involved in the application, this court decides that
there is no merit in the contention that the charge levelled
against the petitioner is groundless on the face of materials
available on record. Hence this court decides that the
petitioner is not entitled for an order of discharge as prayed
for."
15. While rejecting the Crl. M.P. No. 87 of 2014 filed by the
Respondent No. 1 (husband), the Special Judge observed as under:-
"8. Now let us consider the grounds urged by the petitioner
in seriatum.
I. The Income-Tax returns submitted by the petitioner's
wife, was not considered by the Investigating Officer in the
proper perspective.
The learned counsel for the petitioner assiduously
argued that through the Income-Tax returns submitted by the
wife of the petitioner, who is arrayed as 2nd accused in the
main case, it established beyond doubt that the petitioners
wife had sufficient source to acquire properties mentioned in
Statement II but the Investigating Officer in total disregard to
the Income-Tax returns has treated the properties standing in
the name of the petitioner's wife as the properties of the
petitioner on the premise that the petitioner has purchased
the properties benami in the name of his wife and as such the
computation made by the Investigating Officer in arriving at
the total value of the assets acquired by the petitioner during
the check period at Rs. 28,23,492/- as set out in Statement V
is grossly erroneous. As already pointed out the fact that the
petitioner's wife, the 2nd accused is an Income-Tax assessee
and that she had submitted her Income-Tax returns to the
concerned Income-Tax authorities regularly is not seriously
disputed. The petitioner is making an adroit effort to impress
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v.
R. SOUNDIRARASU ETC. [J. B. PARDIWALA, J.]
A
B
C
D
E
F
G
H
644
SUPREME COURT REPORTS
[2022] 7 S.C.R.
upon the court that particulars set out in the Income-Tax
returns unequivocally establish the financial capabilities of
the wife of the petitioner to purchase properties and hence
the properties standing in the name of the wife of the petitioner
has to be treated as self-acquired properties of the wife of the
petitioner.
11. (II). Income derived by the petitioner's wife through money
lending business not given due consideration.
According to the petitioner, his wife, the 2nd accused by
doing money lending business was deriving size able income
but the same was not considered by the Investigating Officer
and as such the conclusion arrived at by the Investigating
Officer that the 2nd accused is an ostensible owner of the
properties standing in her name and that the petitioner is the
true owner of the said properties is absolutely wrong. The
Investigating Officer has categorically mentioned that in
respect of the so called money lending business no documents
were produced before him either by the petitioner or his wife
during investigation. Even in the present application the
petitioner has not claimed that there are documents to establish
the money lending business carried out by his wife and the
income derived by her through the said business. The
contentious issue as to whether the petitioner wife was deriving
income by doing money lending business can be decided only
during trial based on the evidence placed in this regard. Hence
this court decides that above contention raised by the
petitioner is pre-matured one and thus cannot be entertained
at the stage of framing charges. On a conspectus evaluation
of the legal and factual aspects involved in the case, this
court decides that the claim of the petitioner for an order of
discharge alleging that the Investigating Officer has erred in
treating the properties standing in the name of the petitioner's
wife as the properties of the petitioner ignoring the separate
income of the petitioner's wife through money lending business
is not sustainable under law.
12. (III). The methodology adopted by the Investigating
Officer in arriving at the total value of assets standing in the
A
B
C
D
E
F
G
H
645
name of the petitioner at the end of the check-period
erroneous:-
According to the petitioner the income derived by the
petitioner's wife other than from S.K. Mat Industries during
the relevant period of Rs. 5,90,342/- but the same has not
been considered by the Investigating Officer even though the
same has been set out in the Income-Tax returns submitted by
the petitioner's wife, the 2nd accused Suguan. The petitioner
further allege that the properties of the petitioner's wife and
son more fully described in Statement II ought to have been
excluded but strangely the Investigating Officer has included
the same, which again clearly demonstrate that computation
has not been made in proper line. Based on the above said
contentions the petitioner challenging the very methodology
adopted by the Investigating Officer, seek an order of
discharge. As elaborately discussed in the earlier part of this
order, the question as to whether the properties standing in
the name of the petitioner's wife and son are in reality their
self acquired properties or whether those properties were in
fact acquired by the petitioner through his financial resources
can be decided only at the time of trial based on the evidence
adduced by both parties in this regard. Since the nature of
properties standing in the name of the petitioner's wife and
son cannot be decided at this stage, at no stretch of imagination
it can be contended that the methodology adopted by the
Investigating Officer in arriving at the total value of assets
and financial resources standing in the name of the petitioner
at the end of the check period is erroneous.
13. Hence considering the materials available on record in
the back drop of the principles of law propounded by our
Apex Court in the case of Suresh Rajan referred supra, this
court decides that the petitioner is not entitled for an order of
discharge alleging that the methodology adopted by the
Investigating Officer is erroneous.
14. In the present case the total value of the assets and
pecuniary resources of the petitioner and his family members
at the end of the check-period has been computed by the
Investigating Officer at Rs.31,69,498/- as set out in Statement
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v.
R. SOUNDIRARASU ETC. [J. B. PARDIWALA, J.]
A
B
C
D
E
F
G
H
646
SUPREME COURT REPORTS
[2022] 7 S.C.R.
II. During investigation of the case, the petitioner has not
produced any documents before the Investigating Officer
except the Income-Tax returns of his wife, the 2nd accused, to
trace the source of income of the petitioner's wife to acquire
the properties standing in her name. Hence the Investigating
Officer proceeded to treat the properties standing in the name
of the petitioner's wife and his son as the properties of the
petitioner, which cannot be found fault at this stage more so
when the petitioner has not disclosed the acquisition of
properties by his wife to the concerned department as required
under the Tamil Nadu Government Servants conduct rules.
Hence this court, at this stage, decides that there is no
substance in the contention of the petitioner that the
methodology adopted by the Investigating Officer in
computing the value of the assets of the petitioner is erroneous.
15. Conclusion :
The materials placed by the Investigating Officer along
with the Final Report disclose grave suspecion against the
petitioner of having committed the alleged offence U/s 13 (1)
(e) of the Prevention of Corruption Act. The guilt or otherwise
of the petitioner has to be decided by court by affording an
opportunity to the prosecution to march in evidence in support
of its case. The materials placed by the Investigating Officer
along with the final report prima facie disclose the existence
of all the essential ingredients constituting the offence U/s 13
(2) r/w 13 (1) (e) of the Prevention of Corruption Act 1988.
Hence this court decides that the petitioner is not entitled for
an order of discharge.
16. In the result the application is dismissed."
16. Thus, while rejecting the discharge applications filed by the
respondents herein, the learned Special Judge recorded a categorical
finding that there was more than a prima facie case against the accused
persons to put them to trial for the alleged offence. The learned Special
Judge recorded a clear finding that the charges levelled against the
accused persons cannot be said to be groundless so as to discharge
them from the prosecution in exercise of powers under Section 239 of
the CrPC.
A
B
C
D
E
F
G
H
647
17. The respondents, being dissatisfied with the orders passed by
the Special Court rejecting their discharge applications, went before the
High Court and challenged the orders by filing Criminal Revision
Application Nos. 702 and 703 of 2016 resply. Both the Revision
Applications came to be heard by the High Court analogously and came
to be allowed by the common impugned judgment and order dated
27.04.2017. The respondents herein came to be discharged from the
prosecution. While allowing the Revision Applications, the High Court
held as under :
"41. Taking into consideration all the relevant facts and
circumstances, this Court is of the view that the Investigating
Officer had not considered the explanation submitted by the
first accused and also not taken into account any assets of
the petitioners/ Al and A2.
42. This Court has also perused the statements of the listed
witnesses along with the impugned orders. As already
discussed in the foregoing paragraphs and as decided in State
of Maharashtra Vs Wasudeo (AIR 1981 SC 1186 : 19813sec
199) cited supra, the nature and the extent of burden cast on
the accused is well settled and the accused is not bound to
prove his innocence beyond all reasonable doubt. All that he
would do is to bring out a preponderance of probability. In
so far as this case is concerned, the petitioners have brought
out a preponderance of probability by way of establishing
their case. As enunciated in Explanation to clause (e) of Sub
Section (1) to Section 13, the petitioners have intimated their
income received from lawful source to the income tax
authorities concerned in accordance with the provisions of
the Income Tax Act, which is applicable for the first accused
being the public servant to intimate his known source of
income and therefore, this Court is of the view that the
prosecution has miserably failed to make out a prima facie
case against the petitioners/ Al and A2.
43. It is the cardinal principle that the accused is presumed to
be innocent unless proved to be guilty by the prosecution and
the accused is entitled to the benefit of every reasonable doubt.
Thus, giving false information or failing to prove his innocence
is no ground to base conviction of accused and on the
STATE THROUGH DEPUTY SUPERINTENDENT Of POLICE v.
R. SOUNDIRARASU ETC. [J. B. PARDIWALA, J.]
A
B
C
D
E
F
G
H
648
SUPREME COURT REPORTS
[2022] 7 S.C.R.
contrary it offends the very basic principle of criminal
jurisprudence which lays the burden on the prosecution to
prove the offence against the accused.
44. In criminal cases, the guilt should be proved beyond any
reasonable doubt that a reasonable man with ordinary
prudence can have. There should. be no doubt whether the
accused is guilty or not. If there is slightest doubt, no matter
how small it is, the benefit will go to the accused.