Jharkhand High Court found Minister in violation of the law for using his or her office to acquire disproportionate assets
Fact and issue of the case
All the three aforesaid Criminal Appeals (SJ) arise out of common judgment and sentence passed by learned Special Judge, CBI, Ranchi in R.C. No.04(A)/2010-AHD-R(B) whereby and whereunder, appellant-Anos Ekka has been convicted and sentenced under Sections 13(2) read with Section 13(1)(e) of the P.C. Act, 1988 (herein-after be called as P.C. Act) and Smt. Menon Ekka, Jaykant Bara as well as Deepak Lakra, Gidyon Ekka, Roshan Minz and Ibrahim Ekka have been convicted and sentenced under Section 109 IPC read with Section 13(2) read with Section 13(1)(e) of the P.C. Act, 1988.
Complaint filed by one Kumar Binod on 25.10.2008 is the basis of Vigilance P.S. Case No.26/2008 dated 26.11.2008 registered under Sections 406, 409, 420, 423, 424, 465/120B IPC and Sections 11/13(2) read with Section 13(1)(e) of the P.C.Act, 1988 for acquiring disproportionate assets by the accused/ MLA/ Minister, Anos Ekka and Harinarayan Rai.
Complainant made allegation of criminal conspiracy, misappropriation, criminal breach of trust, cheating forgery fraudulent execution of deed of transfer containing false statement of consideration amount and to have acquired assets disproportionate to his known legal source of income by Anosh Ekka and also to have acquired lands in violation of C.N.T. Act in the name of his wife Smt Menon Ujjana Ekka.
After investigation Vigilance Bureau submitted, interim charge-sheet no 21/2009 dated 5.10.2009 u/s 406,409,420,423,424,465/120 B of IPC and section 11/13(2) r/w 13(1)(e) of the PC Act, 1988 for possession of disproportionate assets by the accused MLA’s/Ex-Minister Anosh Ekka and Hari Narayan Rai. During the pendency of the case, further investigation was taken up by the CBI under the direction of this Court passed in W.P.(PIL) No.4700 of 2008 and WP (PIL) No.2252 of 2009, CBI vide order dated 04.08.2010 wherein direction was given to the CBI to take up investigation of Vigilance P.S. Case No.26/2008. The CBI after re-registering the case as R.C. No.04(A)/2010-AHD-R(B) submitted Charge-sheet no.02/12 dated 27.01.2012 under Section 109 IPC and 13(2) read with Section 13(1)(e) of the P.C. Act, 1988 against all the accused persons.
During check period from 10.3.2005 to 31.3.2005 Anosh Ekka had acquired assets worth 57.01 Crore, disproportionate to his known sources of income against the pre-check assets of Rs. 92,827/-. The property so acquired was invested in land as well as deposits in NSC’s KVP etc. A construction company in the name of M/s Ekka Construction Pvt. Ltd. was floated and registered with the Rural Works Department of the Govt. of Jharkhand as Class-I A Contractor without fulfilling the eligibility criteria to project the proceeds of crime as untainted income. After investigation the case was found true against accused Anosh Ekka of acquiring disproportionate assets to the known source of income in his own name and in the name of his family members and relatives and associates.
Observation of the court
From the above definition it is manifest that in order to prove abetment, the knowledge or intention on the part of the person accused of the offence need to be proved. Mental element being abstract can be only be judged by conscious act on the part of the person concerned. A man is presumed to know the natural consequence of his act. To “aid” and “abet” means to help, assist, or facilitate the commission of a crime, or to promote the accomplishment thereof, or to help in advancing or bringing it about. The word “abet” includes knowledge of the wrongful purpose of the perpetrator and counsel and encouragement in the crime. It is to be born in mind that it is not necessary that an instigation should be only ‘words’ and may not be ‘conduct. It has been held in P . Nallammal v. State, (1999) 6 SCC 559 it is inconceivable that the abettor or the conspirator can be delinked from the delinquent public servant for the purpose of trial of the offence. If a non-public servant is also a member of the criminal conspiracy for a public servant to commit any offence under the PC Act, or if such non-public servant has abetted any of the offences which the public servant commits, such non-public servant is also liable to be tried along with the public servant before the Court of a Special Judge having jurisdiction in the matter.
In the present case from the evidence of purchase of plots of land, flats, and vehicles in their name without any other lawful source of income during the check period are evidence to show that the appellants namely Menon Ekka (wife of Anosh Ekka), Jaykant Bara, Deepak Lakra and Gidyon Ekka, Roshan Minz and Ibrahim Ekka (brother and nephew of Anosh Ekka) of Criminal appeal 328 and 327 entered into a conspiracy, aided by their active role in commission of the offence of acquisition of disproportionate property. Judgment of conviction of these accused persons on the basis of Section 109 of the IPC for engaging in criminal conspiracy with the principal accused Anosh Ekka and aiding him in acquiring the disproportionate assets by different contrivances punishable under Section 13 (1)(e) of the PC Act is affirmed.
Under Section 13(2) of the PC Act,1988, before coming into force of 2014 amendment, the minimum sentence of imprisonment was one year and the maximum was seven years and the convict shall also be liable for fine. Further, Section 16 the Act of 1988 provides that where a sentence of fine is imposed the Court shall take into consideration the amount or value of property, if any, which the accused person has obtained or the pecuniary resources the accused person is unable to account for satisfactorily. Considering the crime test, criminal test and comparative proportionality test laid down Hon’ble the Supreme Court, the sentence of imprisonment and fine imposed to the appellant Anosh Ekka and Menon Ekka does not require any interference by this Court and is accordingly affirmed.
However in case of Jaykant Bara, Deepak Lakra, Gidyon Ekka, Roshan Minz and Ibrahim Ekka a sentence of RI of five years and fine of five lakhs each shall meet the ends of justice. In default of payment of fine the convict shall serve a sentence of six months.
The argument questioning the power of the trial Court to order confiscation under Section 452 Cr.P.C. does not merit consideration in view of the law settled by Hon’ble the Supreme Court in State of Karnataka v. J. Jayalalitha, (2017) 6 SCC 263 at para 565, wherein it has been held that in the absence of any provision in the Prevention of Corruption Act, excluding its operations to effect confiscation of the property involved in any offence thereunder the trial Court had power of confiscation under Section 452 of the Cr.P.C. Disproportionate assets were acquired by the accused person by commission of offence under the Prevention of Corruption Act, and I do not find any infirmity in the order of confiscation of the disproportionate asset by the learned Court below.
Under the circumstance the Judgments of conviction and sentence against Anosh Ekka and Smt Menon Ekka is affirmed. With regard to other appellant accused namely Jaykant Bara and Deepak Lakra and Gidyon Ekka, Roshan Minz and Ibrahim Ekka the Judgment of conviction is affirmed with modification of sentence.
Cri. Appeal No. 326 of 2020 stands dismissed and Criminal Appeal Nos. 327 and 328 of 2020 are dismissed with modification in sentence as stated above.
Read the full order from hereAnosh-Ekka
The tribunal has ruled in favour of the assessee and dismiss the appeal.