K. Dhanalakshmi v. Central Bureau of Investigation

16. The husband of the petitioner got a decree of divorce on 23.09.2010 by the learned Family Court, Kanpur, U.P.

17. On 09.10.2010, within 15 days of the dissolution of the marriage, the husband of the petitioner re-married. As dissolution of marriage was done without the consent and against the wishes of the Petitioner therefore on 9.11.2010 the Petitioner filed a Review Petition against the order of dissolution of marriage. This review application was dismissed by the learned Family Court on 09.03.2011.

18. On 23.11.2011, the CBI registered an FIR against the petitioner and her mother being No. RC2172011A0012 for disproportionate assets to the tune of Rs. 3.15 crores for the check period from 04.09.2000 to 25.11.2011

19. On 25.11.2014, the petitioner filed a CRL.M.C. 5389 of 2014 for quashing the said FIR.

20. On 20.04.2015, this Court, by a detailed final order and judgment, was pleased to quash the FIR No. 2172011A0012 against the petitioner.

21. On 19.10.2016 the Criminal Appeal No.994 of 2016 arising out of Special Leave Petition (Criminal ) No. 6744/2015 filed by the CBI against the said final judgment and order dated 20.4.2015 of the Delhi high Court was allowed by the Hon‟ble Supreme Court and the order of 20.04.2015 was set aside.

22. In the meantime, the petitioner filed a petition before the High Court of Allahabad, U.P. which on 17.02.2017 passed an order directing the State Government of U.P. to consider the Petitioner‟s claim for empanelment/appointment to the Post of Joint Secretary to the Government of India. The said order was modified on 22.2.2017 to the effect that no consequential action shall be taken on the basis of First Information Report referred to in the order dated 17.02.2017.

23. On 27.02.2019, on behalf of her 2 daughters the petitioner filed a petition for maintenance under Section 125 Cr.P.C. as Case No. 11/70 of 2019 before the learned Principal Judge, Family Courts, Kanpur against her ex-husband.

24. In May, 2019 Mr. Sorabh Babu, filed Matters No. 3768 of 2019 for quashing of the said Maintenance Petition No. 11/70 of 2019 before the Hon‟ble High Court of Allahabad at Allahabad and on 24.5.2019 the Hon‟ble High Court of Allahabad was pleased to dispose of the said Petition No. 3768 of 2019 filed by Mr Sorabh Babu, with directions and without quashing the maintenance petition filed by the Petitioner.

25. On 24.06.2019, the DoPT had granted sanction to the CBI to facilitate the filing of the chargesheet. The chargesheet has been filed in 2019 i.e., after more than 7 years of filing of the FIR.

26. The petitioner challenged the order of grant of sanction by filing CRL.M.C. 4594/2019 in which notice has been issued. Since no stay was granted, the petitioner filed SLP (Crl.) No. 8663-8664 of 2019 before the Hon‟ble Supreme Court which has been dismissed on 04.10.2019.

27. The Government of U.P. has given Vigilance Clearance Report dated 08.11.2010 which is stated to prove that the petitioner till that day was having impeccable antecedents.

28. From 10.11.2010 to 23.11.2011, the petitioner or her 2 daughters did not acquire any immovable property.

29. On 16.04.2021, the petitioner filed an application for discharge in Case No.399 of 2019 before the learned Special Court, CBI. The learned Special Court CBI vide impugned order, was pleased to dismiss the application for discharge. Hence this petition.

30. It is stated by Mr. Bhardwaj, learned counsel appearing for the petitioner that the present petition needs to be allowed for the following reasons:-

ARORA vide: Vasant Rao Guhe v. State of M.P. (2017)14 SCC 442 (Para 18 & 22).

31. Per contra Mr. Varma, learned SPP for CBI has opposed the petition for the following reasons:-

Rs. 73,82,657.49 in her name as well as in the names of her two minor daughters during the check period which are 60.39% over & above to her known sources of income for which she could not satisfactorily account for.

Court revived the FIR in the case, directing that, the proceedings would recommence where it got interdicted. Hence, Sanction for Prosecution can be processed, ARORA notwithstanding the order dated 17.02.2017 r/w 22.02.2017 passed in WP(C) No, 3510/2017.

32. The special judge, when considering the application for discharge has observed following:-

I. Income:

(i) Rs.1,68,000/- from property at Byatarayanapura

(ii) Rs. 3,20,000/- from house at Banashankari (hereinafter referred to as BSK) and

(iii) Rs.1,76,400/-from house at Jayanagar (hereinafter referred to as JYN) iv. Same was rent for the year 2009-2010 and the total amounted to Rs.13,28,800/- and had to be added to the rental income as well. This the petitioner has claimed on the basis of revised ITRs which are claimed to have been filed for the financial years 2008-09 and 2009-2010. v. On the Contrary, as per charge sheet, benefit of rental income of Rs. 3,08,000/-for both these years has been given on the basis of IPRs (Immovable property Returns), in which she had claimed the income of Rs 154000/- each during the years 2008 ARORA and 2009 in respect of only one house at Byatarayanapura and no rental income as claimed now by her were shown in the IPRs of both these years vi. Similarly Rental Income from two house properties (Byatarayanapura & 16 flats) by the Petitioner from the FY 2010-11 as per ITRs.- Rs. 3,53,812/- is incorrect vii. The Petitioner contended that as per ITR FY 2010-11, the income should have been tallied as follows: (i) 16 flats Thimmaiah road-7,02,000

(ii) BYT-1,54,000

(iii) JYN-1,26,9000

(iv) BSK-4,80,000 viii. Rental Income: two house properties (Byatarayanapura & 16 flats) by the Petitioner from 01-04-2011 to 31-10-2011 (first 7 months income taken on the basis of average of total house property Income of the year as per ITRs)- Rs. 11,27,716/- is incorrect. ix. It is contended that rental income for the period from 01.04.2011 to 31.10.2011 of Rs. 25,36,966/- as per the following: a) rental income of Rs.26,64,250/- from 16 flats at 3 & 4,T. Thimmaiah Road, Kadirenhalli, Bengaluru and b) BYT- Rs.1,68,000/-, c) JYN- Rs. 2,12,200/- and d) BSK- Rs. 7,61,000/- ARORA for the financial years 2011-2012 and if it is calculated for 8 months, the amount would be Rs.25,36,966/- the same was found incorrect by the special judge x. While tallying the income, the Ld. Special Court disregarded the said revised ITR because the Petitioner had not provided any such ITR to IO during investigation. It was also stated that the CBI has got the complete ITR from Income Tax Department and there is no mention of any such revised ITR. The revised ITR referred by Petitioner is neither certified copy nor has been authenticated. Thus, in view of the above, the rent shown in revised ITR was not considered at that stage. xi. The Special judge did not consider the ITR for 2010-11 & 11- 12 for the property No. 539, Banashankari, Bengaluru as the same was in the name of mother of the Petitioner who transferred the said property in the name of Baby Ananya vide gift deed on 14.12.2007. As per CBI, mother of the Petitioner had executed an agreement with Karnataka Government in the year 2008 and received rent in her account. As per statement of PW-68, Sh. S. Nagrajappa, it is clear that rent was being paid to mother of the Petitioner by Government of Karnataka and prior to registration of FIR, no rent was paid to Baby Ananya or to petitioner by Karnataka Govt. It noted that there is nothing on record to show that any such rental amount was paid by mother of Petitioner to Petitioner or to her daughter. The prosecution has placed on record a lease agreement executed on 1.4.2012 ARORA between Petitioner on behalf of Baby Ananya and Karnataka government. xii. The income of Rs. 24,65,929/- from house properties during the year 2011-2012, included an amount of Rs. 5,32,700 from property no. 539, 1st Cross, 3rd Main, 6th Block, Banashankari, 3rd Stage, Bengaluru in the name of Ms. Ananya and this amount has not been taken into account as the aforesaid rent was not paid to Ms. Ananya by Government of Karnataka. After deducting the said amount of Rs.5,32,700/- the rental income comes to Rs. 19,33,229/- and when calculated for 7 months it comes to Rs. 11,27,716/-. The Ld. special court did not give the benefit of income as rent of property No. 539, Banashankari, Bengaluru as claimed by mother of the petitioner in her ITRs for the FY 2010-11 and April 2011 to November 2011 as the Government of Karnataka had executed the documents with mother of the petitioner and made the payments to her.

II. Expenditure & assets:

A.Rs.[8] lacs paid by the mother of the Petitioner same has been included in her assets for purchase of Aria car i. The Petitioner visited Delhi along with her mother, Smt. M. Parvathamma, and purchased a TATA Aria Car No. DL12C5877 in the name of her mother for Rs.14,03,000/-. Out of the total purchase price, the Petitioner paid Rs. 8,03,000/- in ARORA cash and an amount of Rs. 6,00,000/- was paid through RTGS from the Corporation Bank A/c No. 40003 of mother of the Petitioner at Giri Nagar, Bengaluru. The car was being used by the Petitioner for her children. ii. As per CBI, a sum of Rs.[7] lacs were withdrawn from the account of Smt. M.Parvathamma at Corporation Bank, Giri Nagar, Banglore on 14.09.2011 and Rs. 1,00,000/- on 15.09.2011. It is noted that Petitioner was carrying a cash amount of Rs. 8,00,000/- on her visit to the Tata Showroom.Said amount cannot be said to have been withdrawn from the account of mother of the Petitioner as the amount of Rs. 7 Lac and Rs. 1 Lac has been withdrawn on 14.09.2011 and on 15.09.2011 in Bangalore. This amount has not been withdrawn by mother of the Petitioner, at Delhi. iii. The Special Court observed that said amount cannot be said to have been withdrawn from the account of mother of the Petitioner as the amount of Rs. 7 Lac and Rs. 1 Lac has been withdrawn on 14.09.2011 and on 15.09.2011 in Bangalore. This amount has not been withdrawn by mother of the Petitioner, at Delhi. It does not appear logical that a person would give cash amount of Rs.8,00,000/- after withdrawing the same from Bangalore to pay the said amount to purchase a car in Delhi and would bring such a huge amount with him/her, in cash, while this amount could be easily paid through RTGS or cheque or through other modes.

ARORA B.Rs. 59,748/- as assets at the beginning of the check period has taken as assets i. During her service with the Ministry of Defence as ACSO from 12.01.2000 to 01.09.2000, the Petitioner had received the amount of Rs. 89,622/- as gross salary. Hence, the amount of Rs. 59,748/- (Rs. 59,748/- has been arrived at after deduction of one third of Rs 89,622/- as non- verifiable expenditure) has been taken as assets of Petitioner at the beginning of the check period ii. The Special Court noted that Petitioner failed to provide any proof/document to show that aforesaid amount was incurred by brother or mother of Petitioner. Further, the statement of PW- 71, Prabhavathi and PW- 82, V.C. Radha shows that mother of Petitioner was a housewife and the financial position of her brother was not good, thus to say that they were incurring day to day expenses for Petitioner is not correct. CBI has rightly deducted 1/3rd of gross income as non-verifiable expenditure while considering assets of Petitioner at the beginning of the check period.

1,75,040/- were found at the Delhi and Bengaluru residences of Petitioner during searches on 25.11.2011, recovered from house of the Petitioner at Bangalore has been held to be the amount belonging to Petitioner i. The Ld. Special court opined that since the aforesaid house belongs to Petitioner, hence any recovery of money effected at this place shall be treated as amount recovered from the Petitioner. Further, it has already come in the statement of PW- 82 V.C. Radha, sister-in-law of Petitioner that mother of the Petitioner was house wife and used to reside with Petitioner where she was posted and whenever she was coming to Bangalore, she was staying with her daughter-in-law, PW-82 Smt. Rada V. C. There is nothing on record to suggest that aforesaid amount belonged to mother of the petitioner. ii. Moreover, the Petitioner failed to give any detail or proof that her husband has incurred amount on household articles.

Petitioner and her mother in Karnataka State Co-operative Apex Bank, Giri Nagar, Bengaluru has been held as the amount belonging to the petitioner: i. It was submitted that Petitioner has opened an account no. 1662 in her name at Karnataka State cooperative Apex Bank, Giri Nagar, Bangaluru on 12.04.93 and on 16.07.99 she got the name of her mother added in the said account as a co-account holder. ii. The case of the prosecution is that at the beginning of check period, there was a balance of Rs. 539/- in the account. The amount of Rs. 1,70,518/- after deducting Rs 539/- has been taken as assets of Petitioner being the current balance in the account as on 25.11.11 iii. The Special Judge held that mother of Petitioner was illiterate and was a house wife while Petitioner is working and has a source of income, hence the amount can be correctly taken as assets of the Petitioner.

ACs on 02.05.2005 by the Petitioner worth Rs. 48,000.00 i. The Petitioner had purchased two split air conditioners (LG make) for Rs. 48,000/- on 02.05.2005 from M/s Video Track, Kanpur and for that she had paid the amount in cash. The amount of Rs. 48,000/- has been taken as assets of the Petitioner.

ARORA ii. It was submitted by Counsel for Petitioner that the price of two split air conditioners (LG Make) for Rs. 48,000/- purchased on 02.05.2005 from M/s Video Track, Kanpur is also liable to be excluded from assets as the same was paid by the ex-husband of the petitioner namely Mr. Sorabh Babu. iii. The LD. Judge held that it is clear from the statement of PW-23 Sh. Anil Diwedi and receipts on record, that these ACs were purchased by Petitioner and they were found installed in the house of Petitioner when search was conducted. The bill for these ACs is also in the name of Petitioner. Thus, there is no substance in the contention of Ld. Counsel for Petitioner that these ACs should not be considered for the purpose of calculation of assets of the Petitioner.

ARORA 1,08,41800/- (Rs. 76,25,000 + Rs. 32,16,800) on the construction of the flats and the same is being taken as her assets vi. The special court has observed that in the cancellation agreement dt. 16.7.2010, it is mentioned that since parties agreed that construction would be complete by March, 2010 and the construction was not completed within time which was essence of the contract, parties agreed to cancel the contract and the mother of the Petitioner agreed to accept Rs. 1 Crore although she incurred expenses of about one crore and thirty lac. Even as per Petitioner she has agreed to give Rs. 1 Crore to her mother against construction done on the aforesaid site till the cancellation of agreement on 16.07.2010, hence, value of construction (assets) on this date can safely be considered as Rs.[1] Crore. vii. The Ld judge held that the Petitioner failed to give any valid justification as to why she had paid only Rs. 76,25,000/- to her mother in place of agreed amount of Rs. 1 Crore. The Petitioner, if had any valid justification, can give during trial. It has already been discussed earlier that further construction on the flats were completed after the cancellation deed and Rs. 32,16,800 were incurred by the Petitioner on the fresh construction and thus value of assets should have been taken as Rs.1,32,16,800/- in place of Rs. 1,08,41,800/-.

I. 1/3 rd of salary amount i.e., Rs.11,79,508.70 were taken as expenditure by Petitioner on non verifiable household items ARORA i. The Ld. Special judge held the same was correct since the mother of Petitioner was a housewife and her brother was not having good financial condition. Further husband of Petitioner has stated that he was incurring only 50% of the household expenses when he was residing with Petitioner and they lived together only till 2004.

33. I have heard learned counsel for the Party.

34. The first question that needs to be answered is whether this Court in view of the order dated 19.10.2016 passed by the Hon‟ble Supreme Court, can entertain the present petition. The Supreme Court in its order dated 19.10.2016 was pleased to set aside the order of the High Court, stating that:

35. It is clear that the Hon‟ble Supreme Court set aside the High court order primarily, for the reason that the investigation was on and charge-sheet was yet to be filed. The Hon‟ble Supreme Court was of the view that at this stage, it would not be proper to interdict the inquiry proceedings and hence, was pleased to set aside the order of the Delhi High Court. The Supreme Court has expressed no opinion on the merits of the case.

36. Since this is a second petition u/s section 482 Cr.P.C., it is also to be seen whether the successive petition is maintainable. The Supreme Court in Anil Khadkiwala v. State (NCT of Delhi), (2019) 17 SCC 294 ARORA has held that bar under section 363 Cr.P.C. would only apply in case application is made to review/recall/modify the earlier order.

8. In Mohan Singh [Supt. and Remembrancer of Legal Affairs v. Mohan Singh, (1975) 3 SCC 706: 1975 SCC (Cri) 156: AIR 1975 SC 1002], it was held that a successive application under Section 482 CrPC under changed circumstances was maintainable and the dismissal of the earlier application was no bar to the same, observing: (SCC pp. 709-10, para 2)

37. The present petition is maintainable for the following reasons:

(i) In quashing of FIR, the income of both petitioner and her mother of the petitioner were taken together and thereafter included in computation of disproportionate assets. When the FIR was filed, it was jointly against mother of the Petitioner and the petitioner which was sought to be quashed. However, subsequently, the case against the petitioner has been segregated from that of the mother.

(ii) When FIR was quashed the investigation was still on. Since then, the investigation is completed and the chargesheet has been already been filed.

38. Hence relying on the judgment Anil Khadkiwala (supra), I am of the view that the present petition is maintainable.

39. In State v. S. Bangarappa, (2001) 1 SCC 369, the Hon‟ble Supreme Court laid down that:

21. Time and again this Court has pointed out that at the stage of framing charge the court should not enter upon a process of evaluating the evidence by deciding its worth or credibility. The limited exercise during that stage is to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the court to proceed further (vide State of M.P. v. Dr Krishna Chandra Saksena [(1996) 11 SCC 439:

22. We have no doubt that the materials which the prosecution enumerated are sufficient to frame the charge for the offence under Section 13(2) read with Section 13(1)(e) of the Act.

23. No doubt the prosecution has to establish that the pecuniary assets acquired by the public servant are disproportionately larger than his known sources of income and then it is for the public servant to account for such excess. The offence becomes complete on the failure of the public servant to account or ARORA explain such excess (vide M. Krishna Reddy v. State Dy. Supdt. of Police, Hyderabad [(1992) 4 SCC 45: 1992 SCC (Cri) 801] and P. Nallammal v. State [(1999) 6 SCC 559: 1999 SCC (Cri) 1133] ). It does not mean that the court could not frame charge until the public servant fails to explain the excess or surplus pointed out to be the wealth or assets of the public servant concerned. This exercise can be completed only in the trial (K. Veeraswami v. Union of India [(1991) 3 SCC 655: 1991 SCC (Cri) 734] and State of Maharashtra v. Ishwar Piraji Kalpatri [(1996) 1 SCC 542: 1996 SCC (Cri) 150] ). In the latter decision the Court held thus: (SCC Headnote) “The opportunity which is to be afforded to the delinquent officer under Section 5(1)(e) of the Act [corresponding to Section 13(1)(e) of the 1988 Act] of satisfactorily explaining about his assets and resources is before the court when the trial commences and not at an earlier stage.”

40. The ambit and scope of power of special courts has been highlighted by the Supreme Court in Vikram Johar v. State of U.P., (2019) 14 SCC 207, has observed that “14. This Court in Union of India v. Prafulla Kumar Samal [Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4: 1979 SCC (Cri) 609] had the occasion to consider Section 227 CrPC, which is Special Judge's power to pass order of discharge. After noticing Section 227 in para 7, this Court held the following: (SCC pp. 7-8) “7.*** ARORA The words „not sufficient ground for proceeding against the accused‟ clearly show that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really his function after the trial starts. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. The sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.”

15. After considering the earlier cases of this Court, in para 10, following principles were noticed: (Prafulla Kumar Samal case [Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4: 1979 SCC (Cri) 609], SCC p. 9)

16. A three-Judge Bench of this Court in State of Orissa v. Debendra Nath Padhi [State of Orissa v. Debendra Nath ARORA Padhi, (2005) 1 SCC 568: 2005 SCC (Cri) 415], had the occasion to consider discharge under Section 227, it was held by the Court that Section 227 was incorporated in the Code with a view to save the accused from prolonged harassment which is a necessary concomitant of a protracted criminal trial. It is calculated to eliminate harassment to accused persons when the evidential materials gathered after investigation fall short of minimum legal requirements.

41. It is, thus, clear that at the stage of hearing the discharge application, the Court ought to exercise its judicial mind to determine whether a case for trial has been made out or not but it is not to hold a mini trial. The Special Court is to sift and weigh the evidence in order to find out whether or not there is sufficient ground for proceeding against an accused but is not required to analyse the evidence in detail.

42. Keeping this in mind, the issue which needs determination is whether on the basis of the allegations in the chargesheet and the defence of the petitioner placed before the special judge, prima facie, the offence u/s 13(2) r/w 13(1)(e) of the PC Act, 1988, is made out or not?

43. Section 13: Criminal misconduct by a public servant. 13 (1)(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.

ARORA 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 2 [four years] but which may extend to 3 [ten years] and shall also be liable to fine. ………………….

44. From the observation recorded, hereinabove, it seems that the special judge in deciding disproportionate assets issue has tallied a balance sheet where the petitioner was required to account for each and every rupee. The Special court was not required to don the role of the chartered account and scrupulously look into each and every rupee of income and expenditure at the stage of framing charges. In Criminal Appeal No. 1045 of 2021, Central Bureau of Investigation (CBI) and Anr vs. Thommandru Hannah Vijayalakshm, the Supreme Court has observed:-

45. At the stage of discharge, the Court only has to sift evidence in order to find out whether or not the allegations made are groundless or not so as to pass an order of discharge. The special Court has gone far beyond the ambit of its jurisdiction by virtually conducting a mini trial in an effort to bring home the guilt of the Petitioner.

46. There are glaring inconsistencies and foundational errors in the income as well as the expenditure and the assets as observed by the special court in the impugned judgment.

47. The Special Court observations are contrary to the admitted facts and are based on conjectures and adverse inferences premised on the version presented by the prosecution. The allegations levelled by the CBI are contradictory to the admitted facts and documents placed by the CBI itself. The infirmities are especially grave with regard to the following: ARORA

48. With regards to the Security deposit, in the charge Sheet, the I.O. has admitted that 15 rent agreements were seized, out of which only 09 out of 15 tenants could be traced and examined during investigation and the 06 tenants who were foreigners could not be traced either by the IO or the Petitioner in the case, hence, they could not be examined. It is also submitted that the rent agreements of these tenants were for 11 months, the period of which expired before the end of check period. There are 9 statements which are mentioned but only 8 have been accounted for.

49. Moreover, as per rental agreements, the security amount to the tune of 20,40,000 was deposited in the bank account. It is clear that the petitioner has shown the deposit of 20,40,000 for security deposit for letting out of the flats. The same is supported by rent agreements as well as by deposit in the bank account. The IO and the special court clearly erred in assuming that since the rent agreement was for 11 months the said amount should be refunded.

50. The fact that security deposit would have been returned for the flats is not borne out from the record but is merely an assumption, as there is no supporting material with the prosecution to that effect. An adverse inference has been drawn nonetheless, despite the fact that the petitioner has been able to show the security deposit of Rs. 20,40,000 for 16 flats. This fact cannot be ignored by the ld. special judge that if the Security of 8 Flats were Rs. 10,55,000/- then the same amount of security deposit with a margin of 10% on higher or lower side should have been taken for the remaining 8 flats.

51. Similarly, while tallying the rental income of the petitioner, I am of the opinion that the LD special judge proceeded to see the probative value of the ITRs produces especially for 2010-11 & 11-12. It is settled legal position is that the stage of framing of charge is a preliminary one and the test of “prima facie” case has to be applied — if the trial court is satisfied that a prima facie case is made out, charge has to be framed.

52. In Sheoraj Singh Ahlawat and others v. State of Uttar Pradesh and another, (2013) 11 SCC 476, it was observed that while framing charges the court is required to evaluate the materials and documents on record to decide whether the facts emerging therefrom taken at their face value would disclose existence of ingredients constituting the alleged offence. At this stage, the court is not required to go deep into the probative value of the materials on record. It needs to evaluate whether there is a ground for presuming that the Petitioner had committed the offence and it is not required to evaluate sufficiency of evidence to convict the Petitioner. It was held that the Court at this stage cannot speculate into the truthfulness or falsity of the allegations and contradictions & inconsistencies in the statement of witnesses cannot be looked into at the stage of discharge.

53. As a result of the above, the Ld. Special judge has proceeded to reduce the actual income during the check period of the petitioner

54. In addition, the Ld. Special Judge has attributed Rs. 8 lacs as the expenditure of the Petitioner for the Aria Car.

55. During the course of the argument on discharge on 17.4.2021, it was shown to the Learned Special Court that Rs.[8] lac was withdrawn from the Petitioner‟s Mother‟s account in the Corporation Bank, Bangalore as on 14.9.2011: a. -Rs.7,00000/- was withdrawn through self cheque and b. -on 15.11.2011(date of purchase of the Car) Rs.1,00,000/through self cheque by her another daughter

56. The observation of Special court is purely based on conjecture and inference. In the Charge Sheet it was alleged that Rs.8,03,000/- in cash was paid by the Petitioner. Because the mother of the Petitioner was not having any bank account in Delhi, the CBI started raising query as to by which mode the said money reached Delhi as if it was impossible to carry cash. The Learned Special Court also fell into error in holding that the same was not a plausible explanation and did not appear logical. This opinion is totally based on presumptions tilted in favor of the prosecution.

57. I am not convinced of this inference and presumption drawn adversely by the special judge against the petitioner. This finding is against the basic cannon of criminal jurisprudence. The petitioner has with documents shown in whose name the car was purchased and who withdrew Rs. 8 lakhs in cash prior to the date of payment. The car is purchased in Delhi in the name of mother and Rs. 8,03,000 is paid in cash. To my mind, there is no reason to disbelieve the statement of mother and the petitioner, that the amount withdrawn by the mother of petitioner was used to pay the cash amount for purchase of car in Delhi. When the prima facie evidence is available on record and the ARORA Petitioner has been able to show the source from which the said Tata Aria Car has been purchased then to discard the same on the basis of the Learned Special Court‟s own logic is totally unjust. It was wholly unwarranted to speculate by which mode the said money reached Delhi. Further 6 lakhs were paid by mother through RTGS from Corporation Bank Account Number 40003.

58. Lastly, it is not difficult to imagine the car purchased in the name of the mother is give to be used by the daughter of the petitioner or the

59. Likewise, income of the mother and the income of the husband which forms the foundation of this case has been utterly disregarded. I am unable to understand why the special judge has not taken the income of both the mother and the husband into account, especially since they lived with the petitioner for the majority of the period under assessment. In my opinion it is imperative that their assets and expenditure are also taken into account while assessing the expenditure of the Petitioner

60. The mother of the petitioner was having substantial amount of property during check period. This is clear from the fact that she gifted properties to her daughters and grand-daughters. The observation that the mother of petitioner was not having income because she was a housewife is not only borne out of record but also contradictory to documents and statements on records.

61. While considering the income of the mother, the observation of Special judge itself seems to suffer from infirmities and contradictions. It has been held by the Special judge that the mother ARORA of the Petitioner was receiving rent from the Karnataka government when denying the Petitioner of her rental income from the properties in Bangalore. “As per CBI, Smt. M. Parvathamma has executed an agreement with Karnataka Government in the year 2008 and received rent in her account.”

62. On the other hand, the special judge has held that since the mother of the petitioner was a housewife, she could not have been able to contribute towards the day-to-day expenses. The Special Court has also recorded that the mother of the petitioner or the brother of the petitioner were not having good financial conditions so could not have incurred the amount. The same is contrary to the finding of special judge noted in the preceding paragraphs. The impugned order also takes into account Rs. 71,325/- as the air fare spent by mother of the petitioner. The special judge noted that mother of the petitioner paid Rs. 68,040/- and Rs. 30,727/- on 25.10.2011 & 21.01.2011. This shows that the mother of the Petitioner was having a source of income. Despite the same, the contribution by the mother of the petitioner to the household expenditure has been disregarded by ld. Special judge. By not excluding the contribution of the mother towards the expenditure and assets, the Special Court has assigned exorbitant amount to the assets and the expenditure to the Petitioner.

63. The denial of attributing any income to the mother is not found in any fact or document but has been conjured up by the ld special court. This factum of the mother not having any income on account of her ARORA being a housewife is also contradictory to the observation by the Ld. Special judge itself.

64. The brother of petitioner has never been examined by the IO on whether he was having an income or not.

65. It is clear from the admitted facts that reasonable inference should have been drawn, in favour of the petitioner.

66. Similarly, the special judge has wrongly observed the year of separation between the petitioner and her husband. The ld. special court has relied blindly on the chargesheet where it has wrongly been mentioned that the petitioner had parted way in 2004. The Family Court, Kanpur specifically recorded the factum of separation as: Marriage of the parties was got solemnised on 9.08.2001 as per Hindu Rites and Rituals. The parties are residing separately since 24.05.2008.

67. The husband and the petitioner were staying together till 2008 is again clear from the fact that the second daughter was born in 2006.

68. It is admittedly on record that thewhehusband and wife parted way in

2008. The Petitioner was living in the shared household comprising of herself, her IAS husband and her mother. It is indeed ironical and difficult to understand that why all the household expenses have been assessed as assets of the Petitioner.

69. It is a reasonable presumption when Mr. Sorabh babu, the husband and the petitioner are living together as husband and wife, then both would have contributed to the articles of the household. Even when they parted ways there is no document to show what articles were ARORA taken away by the husband and what were left behind. Hence, it is completely erroneous on part of ld special judge to hold that all household items will belong to the petitioner and add the same to the expenditure and assets of the Petitioner. I am not convinced by the logic of the Ld. Special judge in holding that the household articles will belong only to the Petitioner especially when the husband is also earning an income and has the capacity to contribute equally if not entirely.

70. The household item like the ACs and other household items as well as air tickets could belong or could have been paid by the husband or the mother. But by not accounting that these articles may have been paid by the husband or the mother of the petitioner, the Ld. Special judge has wrongly computed the details of the assets.

71. The non-accounting of the income of the Husband of the petitioner in the assets and expenditure of the petitioner has again weakened the foundations of the order of the Ld. Special judge.

72. Similarly, the mother who was also financially secure and was living with the petitioner would have contributed to the household assets

73. Moreover, too much emphasis has been laid on petitioner borrowing from her mother and not returning the same. The ld. Special judge failed to appreciate that borrowing from a parent does not mandate that the petitioner will be required to keeps receipts of the same. Borrowing from a parent, without returning, is plausible explanation and should be not have been considered in calculating disproportionate income/ assets of the Petitioner especially since the ARORA mother was staying with Petitioner and the Petitioner was taking care of the mother‟s needs.

74. The special judge, while computing the assets also adjudged the amount recovered from the house, the amount in the joint account of the Petitioner and her mother, the household items as all belonging to the Petitioner especially when the Petitioner gave explanation that the said amount belongs to her mother. To equate the relationship of the petitioner and her mother to that of borrower and creditor where every penny will have to be accounted for and has to be satisfactorily explained is not possible, neither, will failure to give documentary proof of the same should lead to an adverse inference. It is not too much of a stretch to think that the mother would help her own daughter especially when the mother was staying with her daughter.

75. These are the foundational facts which are borne out of record and has contributed to miscalculation and addition of expenditure and assets attributed to the Petitioner.

76. It is clear that the Special Judge in passing the order has only looked into the material adduced by the CBI, compared it with the information provided by the CBI in the chargesheet and then pronounced a verdict on the merits of each individual allegation. It has not considered the material contradictions, but relied on some conjectures and miscalculations.

77. In State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709, the Supreme Court observed: ARORA

29. We have bestowed our consideration to the rival submissions and the submissions made by Mr Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.”

78. However, the special court, has proceeded without applying its judicial mind and has, thus, acted as a mouthpiece of the prosecution.

79. I am of the opinion that since chargesheet has been filed, the said infirmities pointed out above had to be taken into consideration as the same could be enough to take away the whole foundation of the Disproportionate Assets case against the Petitioner.

80. I am also aware of the limitation imposed on this court while hearing this petition. In Prabhu Chawla v. State of Rajasthan, (2016) 16 SCC 30, the Hon‟ble Supreme Court has exhaustively dealt with the scope of 482 Cr.P.C. The Hon'ble Supreme Court has observed that High Court has got inherent power under Section 482 Cr.P.C., and nothing in the code shall be deemed to limit the inherent power of the High Court to make such orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any Court or otherwise to secure the end of justice. It is also well settled law, inherent power u/s 482 Cr.P.C., must be exercised sparingly only in order to secure the ends of justice.

81. The issue posed before this Court is whether in these circumstances, should the court be a helpless spectator and leave the petitioner to prove every detail in the trial, thereby prolonging the suffering of the

82. In my opinion, the answer is no. In face of such grave misconstruction of facts and contradictions, the court cannot be a mute spectator and allow the petitioner to suffer from the agony of the trial. In such circumstances, the leaning should be in the favour of the innocence of the petitioner rather than guilt.

83. In MCD v. Ram Kishan Rohtagi, (1983) 1 SCC 1

8. Another important consideration which is to be kept in mind is as to when the High Court acting under the provisions of Section 482 should exercise the inherent power insofar as quashing of criminal proceedings are concerned. This matter was gone into in greater detail in Smt Nagawwa v. Veeranna Shivalingappa Konjalgi [(1976) 3 SCC 736: 1976 SCC (Cri) 507: 1976 Supp SCR 123: 1976 Cri LJ 1533] where the scope of Sections 202 and 204 of the present Code was considered and while laying down the guidelines and the grounds on which proceedings could be quashed this Court observed as follows: [SCC para 5, p. 741: SCC (Cri) pp. 511-12] “Thus it may be safely held that in the following cases an order of the Magistrate issuing process against the accused can be quashed or set aside: (1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; (2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; ARORA (3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like.

9. Same view was taken in a later decision of this Court in Sharda Prasad Sinha v. State of Bihar [(1977) 1 SCC 505: 1977 SCC (Cri) 132: (1977) 2 SCR 357: 1977 Cri LJ 1146] where Bhagwati, J. speaking for the Court observed as follows: [SCC para 2, p. 506: SCC (Cri) p. 133] “It is now settled law that where the allegations set out in the complaint or the charge-sheet do not constitute any offence, it is competent to the High Court exercising its inherent jurisdiction under Section 482 of the Code of Criminal Procedure to quash the order passed by the Magistrate taking cognizance of the offence.

10. It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482 of the present Code ARORA

84. It is a settled law that the charges can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the Petitioner, even if fully accepted before it is challenged by cross examination or rebutted by the defence evidence, if any, cannot show that Petitioner committed the particular offence. From the infirmities laid detailed above, it is can be said that once those infirmities are removed it will severely affect DA. In such case, there would be no sufficient ground for proceeding with the trial.

85. In my opinion, the Special Court fails to bring home the guilt of the Petitioner especially because the order of Special Judge suffers from the aforesaid infirmities. The contradictions make it plausible that the case “may be true” but is surely not definitely true.

86. In the present case, the order of the special judge is against material record, because of which the special judge has reached to a conclusion which is inherently improbable. Although this Court cannot examine the correctness of the allegations in a chargesheet, this case falls in the category of cases where it is patently clear that the allegations are inherently improbable and no prudent person can reach such a conclusion that there is sufficient ground for proceeding against the Petitioner as the material adduced do not disclose offences.

87. Moreover, the Vigilance Clearance Report dated 08.11.2010 given by the Government of U.P. which is stated to prove that the petitioner till that day was having an impeccable antecedent also fortifies my observations that there are no reasons to prosecute the petitioner.

88. It is also to be noted that the chargesheet has been filed after more than 7 years of filing of the FIR. In Hasmukhlal D. Vora v. State of T.N., 2022 SCC OnLine SC 1732

89. Hence, it is clear that in these circumstances the court cannot be helpless spectator and leave the petitioner to prove each and every detail in trial and thereby making the petitioner suffer the agony of trial. The petitioner will also have to face the trauma of trial despite ARORA having prima facie explained the sources of her income and expenditures. To allow the same will be misuse of judicial process.

90. The court also cannot ignore that there are sufficient grounds which favor the innocence of the petitioner rather than the guilt. If there is no prima facie case made out against the petitioner, then why should she face the trial, which will go on for years together. It would be, thus, in the interest of justice and necessary to achieve the object of the law that the petitioner is saved from unnecessary prosecution.

91. Therefore, in the present case, everything cannot be left for trial. In this view of the matter, the order of the Ld. Special judge is set aside and the petitioner is discharged in FIR No. RC 2172011A0012.

92. The petition along with applications, if any, is disposed of.