SUPREME COURT ILLUSTRATIONS

SUPREME COURT ILLUSTRATIONS IN ABETMENT OF DISPROPORTIONATE ASSET CASES IN PC ACT, 1988.

S. 12 of the Act lays down that whoever abets any offence punishable under S. 7 or S. 11 of the Act whether or not that offence is committed in consequence of that abetment, shall be liable to punishment. Thus under S. 12 of the Act even if the offence abetted is not committed by the public servant, the person who abetted the offence is liable to-punishment. Under S.14(b) of the Act whoever habitually commits an offence punishable under S. 12 shall be punishable with imprisonment for a term which shall not be less than two years but which may extend to seven years and also be liable to fine. It is true that when an offence abetted is committed the person who abetted the offence and the person who committed the offence can be tried at one trial. Suppose in a case the offence under S. 7 or S. 11 abetted by a non-public servant is not committed by a public servant, the non-public servant can only be prosecuted under S.12 or S.14(b) of the Act. In such a situation, if a non-public servant alone cannot be tried before a Special Judge, the guilty person may go unpunished.  

The facts necessary for the disposal of this revision may be stated as follows: The petitioner herein filed a complaint against one Dilip D. Khona, Partner, M/s. Devshi Bhanji Khona, Shipping Clearing & Forwarding Agents, Willington Island, Kochi-3,

alleging the commission of the offences punishable under Ss.12 and 14(b) of the Prevention of Corruption Act. The allegation is that the said Dilip Khona used to give bribe to the Plant Quarantine Inspector for issuing phyto sanitary certificate. It is specifically alleged that on 19.4.2001 he paid Rs. 4,000/- to G.M. Thippanna, Plant Quarantine Inspector as bribe for issuing the photo sanitary certificate. The Central Bureau of Investigation has registered a case against Sri. G.M. Thippanna and he is now being tried in the Court of Special Judge, SPE/CBI-II, Ernakulam, for the commission of the offence punishable under S. 13(1)(a) read with S. 13(2) of the P.C. Act. The lower court dismissed the complaint on the ground that a non-public servant alone cannot be tried by a Special Judge appointed under the P.C. Act. It appears that the lower court is of the view that if an offence under the P.C. Act is committed by a non-public servant he can only be prosecuted along with a public servant.

S. 3 of the Prevention of Corruption Act empowers the State Government or the Central Government to appoint Special Judges to try any offence under the Act or conspiracy to commit such offences or any abetment thereof. As per S. 4 of the Act, the Special Judge appointed under S. 3 of the Act has exclusive jurisdiction to try the offences specified in sub-s. (1) of S.3 of the Act. Sub-s. (3) of S.4 of the Act provides that when trying any case, a Special Judge also may try any offence, other than an offence specified in S. 3, with which the accused may under the Code of Criminal Procedure, 1973 (2 of 1974) be charged at the same trial.

In this case, the accused is alleged to have committed the offences under Ss.12 and 14(b) of the P.C. Act. S. 12 of the Act lays down that whoever abets any offence punishable under S. 7 or S. 11 of the Act whether or not that offence is committed in consequence of that abetment, shall be liable to punishment. Thus under S.12 of the Act even if the offence abetted is not committed by the public servant, the person who abetted the offence is liable to punishment. Under S. 14(b) of the Act whoever habitually commits an offence punishable under S. 12 shall be punishable with imprisonment for a term which shall not be less than two years but which may extend to seven years and also be liable to fine. It is true that when an offence abetted is committed the person who abetted the offence and the person who committed the offence can be tried at one trial. Suppose in a case the offence under S. 7 or S. 11 abetted by a non-public servant is not committed by a public servant, the non-public servant can only be prosecuted under S.12 or S.14(b) of the Act. In such a situation, if a non-public servant alone cannot be tried before a Special Judge, the guilty person may go unpunished[1]. The lower court relied on the decision of the Supreme Court in P.Nallammal v. State[2] to hold that a non-public servant alone cannot be tried before a court of Special Judge. The question discussed in Nallammal Case is that:

1.  Whether a person who is not a public servant can abet an offence U/s 13(1)(e) of PC Act, 1988.

2. Whether the proviso in S.13(1)(e) attracts the known sources of income which is only from lawful  sources or such income so received should have been intimated by the public servant in accordance with the provisions of law as applicable to such public servant.

The case in hand is the case of some former ministers in the Tamilnadu Government headed by former Chief Minister Smt. Jayalalitha. The allegation against them are that  alleged They as public servants had amassed wealth disproportionate to his/her known sources of income. Some of the kith & kin had also been made accused under Section 109 of the IPC in these cases. The case of non-public servants was that they were not public servants and the offence under section 13(1)(e) could not be abetted since the nub of the offence is the failure of the public servant to account for the excess wealth which the public servant alone has exclusive knowledge of the issue. The contention of the accused was rejected by the Special Judge (Vigilance) and High Court at Chennai and the matter was finally heard by the Supreme Court of India. The Supreme Court gave 3 illustrations, which amplify the cases of abetment under section 107 of the IPC vis-à-vis Section 13(1)(e) of the PC Act.

Illustration No. 1:  

‘A’, a close relative of the public servant tells him of how other public servants have become wealthier by receiving bribes and ‘A’ persuades the public servant to do the same in order to become rich and the public servant acts accordingly, If it is approved position, there cannot be any doubt that ‘A’ has abetted the offence by instigation.

Illustration No.2:

Four persons including the public servant decide to raise a bulk amount through bribery and the remaining persons prompt the public servant to keep such money in their names. If this is a proved position, then all the said persons are guilty of abetment through conspiracy.

Illustration No.3:

A public servant tells ‘A’, a close friend of his, that he has acquired considerable wealth though bribery but cannot keep the same as he has no known source of income to account for and requests ‘A’ to keep the said wealth in ‘A’s name and A obliges the public servant in doing so. If it is a proved position,

‘A’ is guilty of abetment falling under the “Thirdly” clause of Section 107 of the Penal Code. And  the offence u/s 13(1)(e) of the PC Act can be abetted by a non-public servant.

Whether  the offence u/s 13(1)(e) of the PC Act is to be understood as an offshoot of the different facets of misconduct of a public servant enumerated in clauses (a) to (d) of the sub-section which a public servant might commit.

Whether the ill-gotten wealth should have a nexus with the sources contemplated in these clauses and if the public servant is able to account for the excess wealth by showing some clear sources, though not legally permissible, but not falling in any of the above clauses, he would be discharging the burden cast on him.

An example was given that if the public servant satisfies the Court that the excess wealth possessed by him is attributable to the dowry amount that he received, then the public servant cannot be convicted. But the Hon’ble Supreme Court held that such a contention could be advanced before the enactment of PC Act, 1988, because the old Act did not contain an “Explanation” as has been appended to section 13(1)(e) of PC Act, 1988.  

As per the said explanation, the known sources of income should be lawful sources and these should have been intimated by the public servant in accordance with the provisions as applicable to him. How can a dowry which is prohibited can be declared legally. That income is not from the lawful source.