LexASHOK TSHERING BHUTIA versus STATE OF SIKKIM
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A B [2011] 3 S.C.R. 242 ASHOK TSHERING BHUTIA v. STATE OF SIKKIM (Criminal Appeal No. 945 of 2003) FEBRUARY 25, 2011 [P. SATHASIVAM AND DR. B.S. CHAUHAN, JJ.] Prevention of Corruption Act, 1988: c s. 13(2) and 13(1)(e) - Charge sheet against appellant- police officer alleging that he was found in possession of assets, dis-proportionate to his known sources of income, to the tune of Rs. 18 lakhs, which was acquired by abusing his official position during the period from 1987-1996 - Appellant D submitted the required information vide document Ext. D-4 giving full details of the properties acquired and possessed by him on plain paper after lodging of the FIR - Grant of sanction by Director General of Police to prosecute the appellant - Conviction and sentence uls. 13(2) and 13(1)(e) by Special Judge - Upheld by the High Court - Sustainability E of - Held: Not sustainable - 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 - Offence becomes complete on the failure of the public F servant to account for or explain such excess - On facts, electricity and telephone bills were not proved and as such the amount shown therein cannot be taken into account - Appellant did not fill up the form as prescribed under the 1981 Rules since the form had never been prescribed u/r. 19 - Not G filling up the form would make the appellant liable for disciplinary proceedings under service rules - Non- compliance of the 1981 Rules would not adversely affect the evidentiary value of Ext.D-4 and the appellant could not be H 242 ASHOK TSHERING BHUTIA v. STATE OF SIKKIM 243 fastened with criminal liability- High Court erred in not placing A reliance on the evidence contained in Ext. D-4 - Taking into consideration the contents of Ext. D-4, the alleged unexplained income of the appellant is only Rs. 2,71,613.64 which is significantly lower than what had been alleged by the prosecution - Check period had been very long and it is B easily possible that a small over-estimation of the respondent's expenditure would have been multiplied and could easily explain the said amount - Alleged unexplained income remains merely a marginal/paltry sum which any government employee can save every year - Thus, order of c the courts below set aside - Sikkim Government Servants Conduct Rules, 1981 - r. 19. s. 13(2) and 13(1 )(e) - Defect or irregularity in investigation - Effect of - Held: Has no bearing on the competence of the court or procedure relating to cognizance D or trial, unless a miscarriage of justice has been caused thereby - On facts, there was an oral direction by the Superintendent of Police to the concerned officer to the investigate the case - Issue as to whether the oral order could meet the requirement of law is a technical issue - There is E nothing on record to show that the investigation had been conducted unfairly. s. 19 - Grant of sanction to prosecute - Invalid sanction - Effect of - Held: Mere error, omission or irregularity in F sanction is not considered to be fatal unless it has resulted in a failure of justice or has been occasioned thereby- s. 19 (1) is procedural and does not go to the root of the jurisdiction - Once the cognizance has been taken by the court under Cr. P.C., it cannot be said that an invalid police report is the G foundation of jurisdiction of the court to take cognizance - On facts, in absence of anything to show that any defect or irregularity in obtaining sanction caused a failure of justice, it cannot be said that sanction was granted without taking into H 244 SUPREME COURT REPORTS (2011) 3 S.C.R. A account the assets and income shown in the document. Code of Criminal Procedure, 1973: s. 391 - Additional evidence at appellate stage - Held: Is permissible in case of a failure of justice - However, such power must be exercised 8 by the court sparingly and only in exceptional suitable cases where the court is satisfied that directing additional evidence would serve the interests of justice - On facts, the electricity and telephone bills were not proved at the time of trial and in absence thereof, the documents cannot be relied upon - Thus, the judgments by the courts below suffered from C procedural error and the amount shown in the bill cannot be taken into accoun
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