SHRI. PARSWANATH vs. ASSISTANT COMMISSIONER OF INCOME TAX

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 20TH DAY OF DECEMBER, 2021

BEFORE

THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

CRIMINAL REVISION PETITION No.304 OF 2019 C/W WRIT PETITION No.33084 OF 2018 (GM-RES) IN CRIMINAL REVISION PETITION No.304 OF 2019

BETWEEN:

CENTRAL BUREAU OF INVESTIGATION (ANTI-CORRUPTION BRANCH) NO.36, BELLARY ROAD GANGANAGAR BENGALURU - 560 032 REPRESENTED BY ITS INSPECTOR OF POLICE.

... PETITIONER

(BY SRI PRASANNA KUMAR P., SPL.PP (PHYSICAL HEARING))

AND:

SMT.V.M.SARASWATHY STAFF QUARTERS NO.33 CENTRAL RESEARCH INSTITUTE STATION POST, BALEHONNUR CHIKKAMAGALURU DISTRICT KARNATAKA - 577 112 NOW RESIDING AT NO.40, 2ND CROSS, DOCTORS LAYOUT KASTHURINAGAR BENGALURU - 560 043. ... RESPONDENT

(BY SRI P.N.MANMOHAN, ADVOCATE (PHYSICAL HEARING)) R

THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTION 397 READ WITH 401 CR.P.C. PRAYING TO SET ASIDE THAT PART OF THE ORDER DATED 06.06.2018 PASSED BY THE LEARNED XXXII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND SPECIAL JUDGE FOR CBI CASES, BANGALORE IN SPL.C.C.NO.308/2015 THEREBY ORDERING TO FRAME CHARGE AGAINST THE 2nd ACCUSED/RESPONDENT HEREIN FOR THE OFFENCE P/U/S 13(1)(e) R/W 13(2) OF P.C ACT, INSTEAD OF ORDERING TO FRAME CHARGE AGAINST HER FOR THE OFFENCE U/S 109 OF IPC AND CONSEQUENTLY ORDER FRAMING OF CHARGE AGAINST THE ACCUSED NO.2/RESPONDENT HEREIN FOR THE OFFENCE P/U/S 109 OF IPC.

IN WRIT PETITION No.33084 OF 2018

BETWEEN:

SMT.V.M.SARASWATHY W/O LATE M.SELVAKUMAR AGED ABOUT 60 YEARS, R/AT NO. 40, 2ND CROSS, DOCTORS LAYOUT, B.CHANNASANDRA KASTHURI NAGARA BENGALURU - 560 043.

... PETITIONER

(BY SRI MANMOHAN P.N., ADVOCATE (PHYSICAL HEARING))

AND:

(BY SRI P.PRASANNA KUMAR, SPL.P.P. FOR R1 (PHYSICAL HEARING); SRI M.VINOD KUMAR, ADVOCATE FOR R2)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF CODE OF CRIMINAL PROCEDURE PRAYING TO QUASH THE FIR DATED 19.2.2014 REGISTERED IN RC 04(A)/ 2014 - CBI/ ACB / BLR AND QUASH THE CHARGE SHEET DATED 1.6.2015 FILED BY THE R-1 VIDE ANNEX-C AND D; AND ETC.,

THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 26.10.2021, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- ORDER

Whether abatement annihilates abetment is the issue to be answered in the subject lis.

The CBI registered a FIR against the petitioner/accused No.2 and her husband M.Selvakumar alleging offences under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 (‘PC Act’ for short) and Section 109 of the IPC. The complaint against the husband of the petitioner was while he was working as Deputy Director (Research) Training Center, Central Coffee Research Institute, Coffee Research Station, Balehonnur, Chikmagalur District has amassed assets disproportionate to his known sources of income during the alleged check period between 1-01-2005 and 31-03-2013.

charge sheet before the Special Court. Before the charge sheet could be filed and charges being framed by the Special Court, accused No.1, husband of the petitioner died on 29-03-2017. On the death of accused No.1 husband of the petitioner, the charge under the Prevention of Corruption Act stood abated. As the proceedings against the husband of the petitioner stood abated, what remained was the allegation of abetment against the petitioner as obtaining under Section 109 of the IPC.

disposed of by a strange order dated 6-06-2018. The Special Court accepts that the offence under the PC Act cannot be proved against the principal offender and when that cannot be proved abetting of offence by the petitioner to the husband for amassing wealth to purchase the property cannot stand. Holding thus, the Special Court rejects the application seeking discharge under Section 239 of the Cr.P.C. but directs charges shall be framed against the petitioner/accused No.2 for offences punishable under Section 13(1)(e) read with Section 13(2) of the PC Act. In an application for discharge, the petitioner suffers an order of additional charge. The petitioner calls in question this order passed by the Special Court in Writ Petition No.33084 of 2018.

their case that the offence under Section 109 of the IPC is a standalone offence and need not depend on the outcome of the proceedings against the principal offender where the principal offender is acquitted or has died would not make any difference for the allegation of offence punishable under Section 109 of the IPC. Therefore, both these cases are heard together.

would place reliance on various judgments rendered by the Apex Court and other constitutional Courts to buttress his submission. On the other hand, the learned Special Public Prosecutor Sri P.Prasanna Kumar appearing for the CBI would contend that the order of the Special Court is erroneous and the CBI is aggrieved by taking away the offence of abetment against the petitioner. It is his further submission that the offence of abetment was always available and it is only on that ground the CBI is aggrieved by the order of the Special Court. It is the categorical case of the CBI that it want the offence under Section 109 of the IPC to be retained and it is only for that purpose the petition is preferred and would also place reliance upon several judgments of the Apex Court and other constitutional Courts to bring home the point canvassed.

the subject lis is whether the proceedings against accused No.1, husband of the petitioner having abated on account of his death, would it not obliterate the offence of abetment under Section 109 of the IPC against the petitioner and consequently the proceedings have to be quashed. Accused No.1 M.Selvakumar who died on 29-03-2017 was charged for offence under Section 13(1)(e) read with Section 13(2) of the PC Act. The petitioner was charged with abetting such offence under Section 109 of the IPC. There was no charge under the PC Act against the petitioner. Section 13(1)(e) read with Section 13(2) of the PC Act read as follows: "13. Criminal misconduct by a public servant.—(1) A public servant is said to commit the offence of criminal misconduct,—

(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.

Explanation.—For the purposes of this section, “known sources of income” means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.

(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a

term which shall be not less than four years but which may extend to ten years and shall also be liable to fine.”

The offence alleged was that accused No.1 husband had amassed assets disproportionate to his known sources of income during the period between 01-01-2005 and 31-03-2013. It is during this period the petitioner is alleged to have abetted her husband. On the death of accused No.1/husband, the petitioner filed application seeking discharge on several grounds. The Special Judge while declining to discharge the petitioner directs the CBI to charge the petitioner for offence punishable under Section 13(1)(e) read with Section 13(2) of the PC Act. It is now necessary to consider the correctness of the impugned order and the fact whether the proceedings can continue against the petitioner for the offence of abetment. To consider this issue, it is germane to notice the line of law on the point in the judgments rendered by the Apex Court and other High Courts. The Apex Court in the case of JAMUNA SINGH v. STATE OF BIHAR1 had held as follows:

1 AIR 1967 (1) SCR 469

“9. It is only in the case of a person abetting an offence by intentionally aiding another to commit that offence that the charge of abetment against him would be expected to fail when the person alleged to have committed the offence is acquitted of that offence. The case of Faguna Kanta Nath [1959 Supp 2 SCR 15] lays this down. The observations of this Court in that case, at p. 7, bring out clearly the distinction in the case of persons instigating another or engaging in conspiracy with another on the one hand and that of a person aiding the person in committing a certain offence. The observations are: “It is not the prosecution case that the appellant abetted the offence by instigating Khalilur Rahman to demand the illegal gratification; nor has the prosecution set up or proved a case of conspiracy between the appellant and Khalilur Rahman for the commission of an offence under Section 161. On the findings of the Court the appellant received the money for and on behalf of Khalilur Rahman and the evidence of the complainant is that Khalilur Rahman had asked him to hand over the money to the appellant. If Khalilur Rahman is acquitted and therefore the offence under Section 161 is held not to have been committed, then in this case no question of intentionally aiding by an act or omission the commission of the offence arises.”

(Emphasis supplied)

The Apex Court in the case of JAMUNA SINGH holds that a person abetting an offence by intentionally aiding another to commit that offence, the charge of abetment against such abettor would fall, if the person alleged to have committed the offence is acquitted of the offence. The Apex Court also holds that if it was a case of conspiracy it would have been a different circumstance.

“Put very briefly, the distinction between the offence of abetment under the second clause of Section 107 and that of criminal conspiracy under Section 120-A is this. In the former offence

2 (1988) 3 SCC 609

a mere combination of persons or agreement between them is not enough. An act or illegal omission must take place in pursuance of the conspiracy and in order to the doing of the thing conspired for; in the latter offence the mere agreement is enough, if the agreement is to commit an offence.

So far as abetment by conspiracy is concerned the abettor will be liable to punishment under varying circumstances detailed in Sections 108 to 117. It is unnecessary to detail those circumstances for the present case. For the offence of criminal conspiracy it is punishable under Section 120-B.”

The Apex Court holds that the offence of criminal conspiracy is an independent offence. It is made punishable under Section 120B and for a charge under Section 109 IPC the act or omission must take place in pursuance of such conspiracy. Abetment by conspiracy will be liable for punishment under varying circumstances detailed under Sections 108 to 117 of the IPC.

accused dies there cannot be an order against a dead person. Criminal Court cannot continue proceedings against dead person and finding him guilty is held by the Apex Court as unsustainable.

3 (1990) 2 SCC 143

“[I]t cannot be held in law that a person cannot ever be convicted of abetting a certain offence when the person alleged to have committed that offence in consequence of the abetment has been acquitted. The question of the abettor's guilt depends on the nature of the act abetted and the manner in which the abetment was made .... The offence of abetment is complete when the alleged abettor has instigated another or engaged with another in a conspiracy to commit the offence. It is not necessary for the offence of abetment that the act abetted must be committed. It is only in the case of a person abetting an offence by intentionally aiding another to commit that offence that the charge of abetment against him would be expected to fail when the person alleged to have committed the offence is acquitted of that offence.”

petitioner was charged with the offence of abetment by conspiracy of the commission of the offence of theft by Major Trilok Chand. The High Court of Allahabad has clearly held that there was no evidence that Major Trilok Chand has committed the theft; therefore, unless the substantive offence against the principal offender is established, the question of abettor being held guilty under these circumstances does not arise. The petitioner is alleged to have entered into a conspiracy along with eight others and abetted the commission of the offence. All the other alleged abettors are acquitted and the principal offender Major Trilok Chand is also acquitted and the petitioner alone remains in the picture as one having abetted the offence by entering into conspiracy. It is axiomatic that there cannot be a conspiracy of one. In Topandas v. State of Bombay [(1955) 2 SCR 881: AIR 1956 SC 33: 1956 Cri LJ 138] it was held that (SCR head note) “two or more persons must be parties to such an agreement and one person alone can never be held guilty of criminal conspiracy for the simple reason that one cannot conspire with oneself”. (Emphasis supplied)

The finding of the Apex Court is that a charge of abetment ordinarily falls when an offence is not established against the principal offender. It is germane to notice the judgment of the High Court of Delhi in the case of KARTONGEN KEM OCH FORVALTNIHA AB v. STATE THROUGH CBI4 wherein it is held as follows:

4 2004 SCC Online Delhi 65

“94. Once it is found that charge of conspiracy against the public servants cannot stand nor can be proved the question of proving the charge of abetment against the petitioners and even other players in this game does not arise as the genesis of the charge against them is charge against the public servants. Thus, in the absence of public servants against whom main charge of conspiracy was made, charge of abetment of conspiracy with public servants to cheat the Govt. of India and misuse of official position by public servants and taking bribe by public servants for awarding the contract to M/s A.B. Bofors against the intermediary or the petitioners who are not public servants can neither be framed nor subjected to trial.”

(Emphasis supplied)

When the charge of conspiracy cannot be proved against the main offender, the charge of abetment to commit such conspiracy cannot be driven home is what the High Court of Delhi holds.

“6.Under the Indian Penal Code abetment of an offence is a separate substantive offence. The Supreme Court in the case of Faguna Kanta Nath v. State of Assam – AIR 1959 SC 673 has categorically held that under the Indian Law for an offence of abetment it is

5 ILR 2013 MP 503

not necessary that the offence should have been committed and a man may be guilty as an abettor whether the offence is committed or not. The Supreme Court later again in the case of Jamuna Singh v. State of Bihar – AIR 1967 SC 553 has reiterated that it cannot be held in law that the person cannot ever be convicted of abetting a certain offence when the person alleged to have committed that offence in consequence of the abetment has been acquitted. The law on the point is, thus, settled that a person can very well be convicted of abetting an offence even though a person alleged to have committed that offence has been acquitted. Applying the same analogy, a person can also be convicted of abetting an offence even in the event of the death of principal accused during the trial who allegedly committed that offence.

(Emphasis supplied)

The offence alleged therein was under Section 109 and 471 of the IPC. Section 471 though deals with a forged document being used as genuine the independent offence along with abetment had to be proved. The Division Bench holds that death of principal offender during the trial who had been charged of offence under Section 13(1)(e) and 13(2) of the Act who had deposited fake receipts in different accounts and the charge of abetment against the surviving member abetting such forged receipts cannot be held to be abetted is what is held by the Division Bench.

the case was abated against him. The wife files an application before the Special Court that criminal case cannot be continued against her in view of the death of her husband, the main accused. The Special Court therein had held that notwithstanding the death of the main offender, the case against the abettor would still continue. The Division Bench affirming the view of the Special Court in the case of ARATI SAHOO @ BEHERA v. STATE OF ORISSA6, holds as follows:–

6 CRL.P No.1391 of 2018 decided on 25-02-2019

2018. While dealing with the same, the learned Special Judge, Special Court, Cuttack said that even in case of death of the main offender, the case shall stand against the abettor.

“I consider that learned Special Judge rightly dismissed the application of the petitioner for discharge. Charges were framed against two accused persons, against one for substantive offence and against other for abetment. If the main accused has died, that does not mean that substantive offence stands wiped out. The offence committed by the deceased, accused of amassing wealth through corrupt means, does not stand wiped out and the wealth still stands there in the hands of LR of the deceased /accused and the role of the petitioner of acting as a conduit for amassing wealth for his father can be proved by CBI during trial. I, therefore, find no force in this petition. The petition is hereby dismissed.”

proceeding against the petitioner under the Special Courts Act, 1979.

The Division Bench of High Court of Orrissa has considered the very point in issue. Long before the judgment of the Division Bench in the case of R.P.SAKUR, a learned single Judge of the Bombay High Court in the case of SMT. MAUSHAMI AMARNATH BATABYAL v. THE STATE OF MAHARASHTRA7 notice the facts obtaining in the case therein which reads as follows: “5. The learned Public Prosecutor, on the other hand, has supported the order passed by the Special Judge, which is impugned in this Revision Application. He submits that the limited question that requires to be considered in the present Revision Application is to examine the correctness of the view taken by the Special Judge. No more and no less. In so far as the argument pressed into service on behalf of the Applicant, contends the learned Public Prosecutor, the same is ill advised. It is submitted that even if the trial as against the principal accused is abated on account of his death, that by itself will not enure to the benefit of the Applicant. According to the learned Public Prosecutor, the Applicant will have to stand the trial on merits. It is submitted that it is well settled that merely because the principal offender is

7 2005 SCC Online Bom. 913 at paragraph 5

acquitted, that by itself cannot be the basis to acquit the co-accused who is charged under Section 109 of I.P.C. Though such a view may be generally correct, there are exceptions to that Rule. It is argued that in the present case nothing has been brought on record by the Applicant to show that the prosecution case against the applicant falls under the third clause of Section 107 of I.P.C. and not the first or the second clauses thereof. It is then contended that even if the principal offender has died during the trial that would not absolve the applicant to stand the test of trial, and offer explanation which the principal offender could have offered, if within the knowledge of the Applicant. It is argued that, in a converse case where the principal offender was alive during the trial but failed to satisfactorily account of pecuniary resources or property disproportionate to his known sources of income or that allows the matter to go by default, that would not absolve the co-accused who has been named in the offence on the charge of abetment under Section 109 of I.P.C. or reduce the burden of such co-accused in any manner. Viewed in this perspective, the submission of the Applicant of prejudice being caused to the Applicant because of absence of the co-accused who is the principal offender, is devoid of merits and, in law, cannot be the sole basis to quash the pending criminal prosecution.”

(Emphasis supplied)

The learned Judge considers and holds that the offence under Section 109 of IPC against the co-offender is maintainable even after the principal offender dies and the said reasoning reads as follows: “6. Having considered the rival submissions, the first question that needs to be addressed is: whether the trial as against the principal accused (Accused No.

1) has abated on account of his death. In the first place, there is no express provision in the Code of Criminal Procedure governing situation under consideration, unlike Section 394 of the Code, which provides for abatement of appeals. However, that provision cannot be invoked in relation to the pending trials or the criminal prosecution before the subordinate Courts as such. Counsel for the Applicant would, however, rely on paragraph 84 of the Criminal Manual issued by the High Court Appellate Side, Bombay, by which the subordinate Courts are also bound. The same reads thus:- “Where, pending a criminal case, the accused is reported to be dead and the case, therefore, abates, the Court should pass an order recording these facts in the following form: “Accused reported to be dead.” “Proceeding abate.” and send the papers to the Record room.” Relying on this provision, it is contended that the trial as against the deceased accused No. 1 will have to be treated as abated. Indeed, this provisions is part of Criminal Manual issued by the High Court of Bombay, which in turn has been formulated in exercise of power conferred under Article 227(2)(b) read with Article 227(3) of the Constitution of India. Clause (1) of Article 227 empowers every High Court to have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Clause (2) of Article 227 stipulates that without prejudice to the generality of the foregoing provision, the High Court may, amongst others, make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts. The Criminal Manual of Bombay High Court has been issued after previous approval of the Governor as is required by the proviso to Clause (3) of Article 227. As mentioned earlier, there is no express legislative provision dealing with the situation on hand, as to how criminal trial should be governed in case of death of one or more accused involved in the trial. In that sense, the

provision in the form of para.84 of the Criminal Manual cannot be said to be inconsistent, but one which attempts to supplement the provisions of the Criminal Procedure Code. Thus understood, the subordinate Courts will be bound by the said procedure laid down in para.84 of the Criminal Manual. There is another provision to which reference can be usefully made. Section 477 of the Criminal Procedure Code provides for power of the High Court to make Rules. Clauses (d) of sub-section (1) of Section 477 of the Code empowers the High Court, with the previous approval of the State Government, to make Rules on any other matter which is required to be, or may be, prescribed. In other words the Applicant may be right to the limited extent that the trial as against the principal accused (accused No. 1) has abated after his death. 7. The next question as is required to be addressed is, what is the consequence or effect of such abatement of the trial. There is no provision either in the Code or any other law brought to my notice, which provides for consequences of abatement of criminal proceedings. Expression “abatement” is not defined in the Act or the Code. That leaves us to rely on the dictionary meaning of expression “abate”. The Judicial Dictionary, 12th Edition of KJ. Aiyar's has spelt out the meaning of expression “abate” as follows:- “Abate: is a generic term derived from French word “Abatre” and signifies to quash, to beat down or destroy. “Abate” means to throw down, to beat down, destroy or quash (Black's Law Dictionary, Fifth Ed.). To diminish or take away, to prostrate, to beat down remove or destroy; also to let down or cheapen the price in buying or selling. [Encyc. L., Stroud, P-5]. To prostrate, break down, remove, or destroy; also to let down or cheapen the price in buying or selling. [Wharton's Law Lexicon, 1976 Reprint Ed.]. Expression “abatement” has been separately spelt out, in the same dictionary. “Abatement of criminal proceedings” has been termed to mean their termination

without a decision on the merits and without the assent of the prosecutor. If this is the legal position or meaning of abatement, it is incomprehensible as to how the abatement of criminal proceedings as against Accused No. 1 should result in terminating the entire action, even against the surviving co-accused independently charged for abetment under Section 109 of I.P.C. Indubitably, the abatement of criminal proceedings as against one of the accused even if principal accused, by itself cannot be the basis to terminate the entire criminal action, assuming that the remaining accused (co-accused) are charged only for abetment under Section 109 of L.P.C. 8. To get over this position, Counsel for the Applicant relied on the decision of the Apex Court in the case of Central Bureau of Investigation v. V.C. Shukla, AIR 1998 SC 1406. In my opinion, this decision is of no avail to the Applicant herein. In that case, the gravamen of the charge against the co-accused Jains was that they had entered into two separate agreements one with Shri Shukla and the other with Shri Advani, in terms of which they were to make certain payments to them as a gratification other than legal remuneration as a motive or reward for getting their favour while they were ‘public servants and in pursuance of the said agreements payments were actually made to them. The Court on analysing the material on record positively found that the prosecution was not able to make out prima facie case to prove that shri Advani and Shri Shukla were parties to such conspiracy. On this finding, the Court proceeded to hold that, the theory of conspiracy as framed/sought to be framed cannot stand also against the Jains for the simple reason that in a conspiracy there must be atleast two parties. In other words, the exposition in the said decision is on the fact situation of that case. In paragraphs 49 to 51 of the same judgment, the Apex Court has analysed the relevant provisions including Section 107 of the I.P.C. and noted that, as the case before it fell within the third clause and not the first and second clause, the co- accused who is charged of abetment under Section 109 ought to succeed along with the principal offender. The legal position as to the purport of charge of abetment has been considered by the Apex Court in Jamuna

Singh v. State of Bihar, reported in AIR 1967 SC 553. On analysing the relevant provisions such as Sections 107 to 109 of I.P.C. and the decisions on the point, it is observed by the Apex Court that it cannot be held in law that a person cannot ever be convicted of abetting a certain offence when the person alleged to have committed that offence in consequence of the abetment has been acquitted. It is further held that the question of the abettor's guilt would depend on the nature of the act abetted and the manner in which the abetment is made. It is only in the case of a person abetting an offence by intentionally aiding another to commit that offence that the charge of abetment against him would be expected to fail when the person alleged to have committed the offence is acquitted of that offence. The Apex Court has also noted that the offence of abetment is complete when the alleged abettor has instigated another or engaged with another in a conspiracy to commit the offence. It is not necessary for the offence of abetment that the act abetted must be committed. Reference can be usefully made to another decision of the Apex Court which has been pressed into service by learned A.P.P., in the case of Gallu Sah v. State of Bihar, AIR 1958 SC 813. Even in this decision in paras. 7 and 8, the Apex Court examined the purport of the offence of abetment. Referring to the Calcutta High Court decision in the case of Umadasi Dasi v. Emperor, AIR 1924 Cal.1031, the Apex Court noted that in the majority of cases the general rule that where a person is charged with having committed an offence and another is charged with having abetted him in the commission thereof, and the prosecution fails to substantiate the commission of the principal offence there can be no conviction for abetment, might hold good; but there are exceptions to the general rule, particularly when there is evidence which satisfactorily establishes that the offence abetted is committed and is committed in consequence of the abetment. 9. Before the lower Court reliance was placed by the Applicant on the decision of the High Court reported in (1999) Vol.101 (2) Bom. L.R.223 in the case of State

of Maharashtra v. Ramdas S. Kurlekar. In that case the charge against the principal accused was not proved, for which reason the co-accused who was charged only as an abettor was also granted benefit. That decision is again on the facts of that case as the role of the co- accused was stated to be only one of accompanying P.W. 1 in the car to receive the amount. 10. In my opinion, the decisions pressed into service by the Counsel for the Applicant, are inapposite. In the first place, the question of granting benefit to the co-accused charged with abetment, relying on the circumstance of abatement of the criminal proceedings (trial) as against the principal accused, cannot be countenanced. This is so because, such benefit can be granted only when the principal accused was to be acquitted of the principal offence for which he has been charged. In the case of abatement of criminal proceedings, however, it is not termination of proceedings with a decision on merit with the assent of the Public Prosecutor. In other words, abatement of criminal proceedings does not result in acquittal of the concerned accused. The scheme of Section 394 of the Code makes it amply clear that abatement of Appeal against the deceased accused does not entail in ab-initio dissolution of the criminal action. For, the legal representatives are given option to contest the appeal in so far as sentence of fine is concerned. Similarly, it is well settled that the remedy of revision can be pursued inspite of death of the accused. Thus understood, the principle invoked by the Applicant to claim benefit, relying on the abovesaid decisions is unavailable. A priori, the Applicant can succeed only if the prosecution were to fail in discharging the initial burden to establish the charge against the accused. Even if the prosecution failed to discharge the initial burden to establish the charge as against the principal offence, even then it will be imperative to demonstrate from the record that the prosecution case as against the applicant does not fall in the first or the second clause of Section 107 of I.P.C. and would only fall under the third clause thereof. No such argument was canvassed before the Lower Court or any serious attempt in that

behalf has been made before this Court. The only document which is placed on record before this Court along with the impugned order, is the charge as framed against the accused by the Special Judge. That document cannot be the sole basis to consider the claim of the Applicant in this behalf. Be that as it may, all those questions will have to be addressed by the appropriate Court as and when occasion arises. 12. That takes me to the last submission canvassed on behalf of the Applicant. According to the Applicant, even if the Applicant is required to face the trial, the trial would be unjust and the Applicant will suffer grave prejudice due to the absence of the co- accused (accused No. 1) who was primarily required to satisfactorily account of pecuniary resources or property disproportionate to his known sources of income, being a public servant. Indeed, Section 13(1)(e) is an offence which is committed by a public servant. A public servant is said to have committed the offence of criminal misconduct, if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. That, however, does not mean that persons other than the public servant cannot be tried for the offence under the Act along with the principal offender, who is a public servant. The Apex Court in the case of P. Nallammal v. State, reported in AIR 1999 SC 2556 and in State of UP. v. Udai Narayan reported in 1999 (8) SCC 741 has held that a person who is not a public servant can be prosecuted under the provisions of the Act. In so far as the rule of evidence to establish offence under Section 13(1)(e), the same is no more res integra. Burden is very limited on the prosecution. It is sufficient for the prosecution to show that the accused is a public servant; the nature, and the extent of the pecuniary resources or property which were found in his possession or any person on his behalf, what were his known sources of income (known to the prosecution); that such resources or property found in possession were disproportionate to his known sources of income. The burden then shifts on the public servant to

satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. If the public servant fails to do so, the legal presumption against such Government servant would operate, resulting in recording a finding of guilt and conviction. A priori, merely because the principal accused is not available for trial, that would not enure to the benefit of the co-accused named as abettor under Section 109 of the I.P.C. The test to consider this argument, as is rightly contended by the learned P.P., is, in a given case where the principal accused is available for trial and allows the matter to go by default or for that matter fails to satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income, the co- accused named with charge of abetment under Section 109 will be bound by such finding against the principal accused. Thus understood, the presence or absence of the principal accused for the trial cannot be the basis to proceed or not to proceed against the co- accused charged of abetment under Section 109 of I.P.C. Such co-accused will have to stand the trial on his own. If he so desires, it is open to him to produce evidence to satisfactorily account of pecuniary resources or property disproportionate to the known sources of the principal accused. In the present case, the co-accused is none other than the wife of the principal accused. The prosecution claims that the real owner of the resources or property in the name of the Applicant was the Accused No. 1 who was the public servant. Even otherwise, the trial ought to proceed against the Applicant herein in accordance with law and as rightly observed by the Special Judge after recording of evidence and hearing the parties the final conclusion on the relevant aspects can be arrived at the stage of judgment.”

(Emphasis supplied) The facts obtaining in the cases before the Division Bench of Orissa High Court and the learned single Judge

before the Bombay High Court are identical to the facts obtaining in the case at hand. 16. Even in the judgment of PANKAJ PATHAK rendered by the Division Bench of the Madhya Pradesh High Court, the facts are identical except the added allegation concerning Section 471 of IPC against the husband. Against the wife therein it was only under Section 109 of IPC. The said judgment also would become applicable to the facts of the case at hand. Both the Division Benches and that of the learned single Judge of Bombay High Court in my considered view cover the issue against the petitioner in Writ Petition No.33084 of 2018.

long as the 3 Judge Bench of the Apex Court in the case of STATE v. NIRMALA8 –has held as follows: “2. Charge-sheet was filed against the main accused who was a public servant under the provisions of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the P.C.Act’) and also against the respondents – accused who are non-public servants under the provisions of Section 109 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”). All the accused were discharged by the learned trial Court i.e., the court of Special Judge cum-Chief Judicial Magistrate, Salem. Aggrieved, a criminal revision petition was filed before the High Court. In the meantime, the main accused died. The High Court dismissed the revision petition on the ground that the death of the main accused has resulted in abatement of the trial and, therefore, nothing remained for consideration. Aggrieved, the present appeals have been filed.

8 Criminal Appeal No.1647–1650 of 2017 decided on 13-09-2017

The Apex Court was following the judgment in Jitender Kumar Singh while rendering the aforesaid finding. The Apex Court in the case of STATE v. JITENDER KUMAR SINGH9 – "3. In Criminal Appeal No. 161 of 2011, we are concerned with the question as to whether the Special Judge has jurisdiction under Section 4(3) of the PC Act to try non-PC offences against private persons when no charges have been framed against public servants for trying a case for offences under Section 3(1) of the PC Act, since they died before framing of charges under the PC Act or IPC?

9 (2014) 11 SCC 724

Consequently, once the power has been exercised by the Special Judge under sub-section (3) of Section 4 of the PC Act to proceed against non-PC offences along with PC offences, the mere fact that the sole public servant dies after the exercise of powers under sub- section (3) of Section 4, will not divest the jurisdiction of the Special Judge or vitiate the proceedings pending before him.

Special Judge had no occasion to try any case against any of them under the PC Act, since no charge has been framed prior to the death of the public servant. The jurisdictional fact, as already discussed above, does not exist so far as this appeal is concerned, so as to exercise jurisdiction by the Special Judge to deal with non-PC offences.”

(Emphasis supplied)

On a coalesce of the judgments of the Apex Court considered hereinabove, what would unmistakably emerge is that death of the husband during trial before the charges are framed will not result in closure of trial against the co-accused, the co- accused, in the case at hand, who is alleged of abetment under Section 109 of the IPC. The Special Judge for cases arising under different provisions of Prevention of Corruption Act cannot try the subject offence. Therefore, the competent criminal Court of the appropriate jurisdiction will have to try the allegation under Section 109 of the IPC against the wife. The question that had arisen for consideration is answered in the peculiar facts of this case holding that abatement does not annihilate abetment.

O R D E R

(a) Writ Petition No.33084 of 2018 is partly allowed and the order dated 6-06-2018 passed in Special C.C.No.308 of 2015 by the XXXII Additional City Civil & Sessions Judge and Special Judge for CBI cases at Bangalore stands quashed only insofar as it directs the respondent- CBI to register offences punsihable under Section 13(1)(e) r/w 13(2) of the Prevention of Corruption Act, 1988

(b) Criminal Revision Petition No.304 of 2019 filed by the CBI is allowed in part and the order dated 6- 06-2018 passed in Special C.C.No.308 of 2015 by the XXXII Additional City Civil & Sessions Judge and Special Judge for CBI cases at Bangalore stands quashed only insofar as it directs the respondent- CBI to register offences punishable under Section 13(1)(e) r/w 13(2) of the Prevention of Corruption Act, 1988

(c) Challenge to the continuance of trial against the petitioner/accused No.2 for the offence punishable under Section 109 of the IPC is rejected.

(d) The Special Court hearing Spl.C.C.No.308 of 2015 cannot hear the matter and the trial will have to be continued before the competent Criminal Court against accused No.2.

Sd/- JUDGE bkp