Libertatem Magazine

Non Examination of Investigation Officer Does Not Put Any Dent on the Prosecution Case : Bombay High Court

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A Single Bench of the Bombay High Court, at Goa, consisting of Justice M.S. Sonak heard the appeal filed instead of the sentence given by the CBI Special Court under the Prevention of Corruption Act, 1988.

Facts of the Case

The Appellant in the present case was held by the CBI for having disproportionate assets, and adequate explanation for the same was not provided.

Therefore, the Appellant was arrested under Section 13(2) read with Section 13 (1)(e) of the Prevention of Corruption Act, 1988. The second Appellant was charged for aid and abetting the first Appellant and was charged under Section 109 of Indian Penal Code read with Section 13(2) of Prevention of Corruption Act, 1988. The Special Court found them guilty and sentenced them to undergo rigorous imprisonment for four years and to pay a fine of Rs. 1,00,00,000/-, in default, to undergo six months of simple imprisonment.

Thereafter, they filed the appeal before the High Court. 

Arguments on Behalf of the Appellant

The Counsel for the Appellant submitted that the investigation was done by Police Sub-Inspector. It was not done by the Inspector, who alone, was competent to investigate the Prevention of Corruption Act, 1988. Therefore, the Counsel submitted that the whole investigation was bad in law as was held by the Supreme Court in Inspector of Police, Visakhapatnam v/s. Surya Sankaram Karr

The Counsel further submitted that there was no cross-examination of the Investigation Officer nor was there sanction to the Special Court under Section 197 of the Code of Criminal Procedure, 1973 (CrPC). Moreover, he also submitted that the Special Court did not take into consideration the statement of defence under Section 313 of the CrPC. It was further argued that the special judge awarded the punishment to the Appellant via the Amendment Act 2014 and the offence happened in 2011, hence it was a violation of Article 20 of the Constitution.

Arguments on Behalf of the Respondent

The Counsel for the Respondent submitted that there was documentary evidence to prove the guilt of the Appellant. He further submitted that non-examination of Investigating Officer when the entire documentary evidence was on record and was not challenged, could not be called upon at this stage. It was submitted that non-examination caused no prejudice to the matter. 

There was no sanction requirement under Section 197 of the Code of CrPC and there was no violation of Section 17 of Prevention of Corruption Act as the complaint was registered with SHO who ordered the PSI to start an investigation. Therefore, the investigation was done under the authority of the SHO only. 

Observations by the Court

The Court, after considering the submissions, observed that there was no violation of Section 17 of the Prevention of Corruption Act, 1988. Moreover, the judgment relied on by the Appellant i.e. Surya Sankaram Karr was already overruled by the Supreme Court in the case of Ashok Tshering Bhutia v/s. The state of Sikkim

The Court further observed that the non-examination of the Investigating Officer did not put a dent in the Prosecution’s case.  The Appellants were not able to show how the non-examination of the Investigating Officer affected their case. The Court further observed that the Prosecution was able to prove its case beyond a reasonable doubt by all the documentary and oral evidence submitted.

The Court stated that there was no violation of Section 313 of CrPC as the Appellant simply denied whatever was asked and the special judge relied on the evidence submitted by the prosecution.

The Court further held that the Prosecution had failed to prove its case beyond reasonable doubt the guilt of the Second Appellant as no proper documentary evidence was there against her. In the case of punishment sentence, the special judge was correct.

Decision by the Court

The Court held that the first Appellant was to surrender before the Special Court within 6 weeks from the date of judgment and the conviction of the second appellant was set aside.

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