Crl.Rev.No. 2457 of 2009(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: 16.8.2010 Crl.Rev.No. 2457 of 2009(O&M) Daljit Singh ......Petitioner Versus State of Punjab .......Respondent Crl.Rev.No. 2032 of 2009(O&M) Jaswinder Kaur ......Petitioner Versus State of Punjab .......Respondent Crl.Rev.No. 2344 of 2009(O&M) Dalwinder Kaur and others ......Petitioners Versus State of Punjab .......Respondent Crl.Rev.No. 2368 of 2009(O&M) Manjit Kaur and others ......Petitioners Versus State of Punjab .......Respondent Crl.Rev.No. 2457 of 2009(O&M) 2 CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Rajesh Punj, Advocate, for the petitioners in 2457 of 2009 and 2032 of 2009. Mr.Tribhuwan Singla Advocate, for the petitioners in CRR No.2344 of 2009. Mr.Ravinder Malik, Advocate, for the petitioners in CRR No.2368 of 2009. Mr.Amandeep Singh Rai, AAG, Punjab. **** SABINA, J. Vide this order CRR Nos. 2457, 2032, 2344 and 2368 of 2009 will be disposed of as these have arisen out of the same order. Prosecution alleged that the accused Daljit Singh Grewal had disproportionate assets to his known sources of income. He had purchased benami properties in the name of co-accused, who were his near relatives. The check period was taken as 1.4.1990 to 31.3.2002. After the presentation of challan, the accused-petitioners moved an application for discharge. Vide the impugned order dated 29.4.2009, learned Special Judge dismissed the application for discharge and ordered that the charge be framed against the accused. Hence, the present petitions. Learned counsel for the petitioners has, inter alia, submitted that the charge framed against co-accused of Daljit Singh Grewal under Section 120-B of the Indian Penal Code (IPC for short) was vague. The income of the co-accused, who had been charged under Section 120-B IPC, had not been taken in consideration during Crl.Rev.No. 2457 of 2009(O&M) 3 investigation. Accused Daljit Singh Grewal was an income tax assessee since the year 1989 and had been submitting his property returns every year to the Government. Accused Jaswinder Kaur (wife of accused Daljit Singh Grewal) was working as a teacher in a Government school since the year February 1994 and was an income tax Assessee from the year 1989 onwards. Accused Dalbir Singh (brother of accused Daljit Singh Grewal) was a business man- cum- agriculturist and was submitting his income tax returns qua his income. Accused Dalwinder Kaur (wife of accused Dalbir Singh) was running a dairy farm and was income tax assessee since the year 1989. Accused Harvinder Singh (brother-in-law of accused Daljit Singh Grewal) was an agriculturist and owned land in District Moga and was the only son of his father. Total purchase, as per the challan qua him, was Rs.20,888/-. Accused Manjit Kaur was a house wife and had purchased property from the income of her husband. The allegation against her, as per the challan, was that she had purchased property worth Rs.29,333/-. Accused Jagjit Singh had inherited 7.1/2 acres of agricultural land in village Threeke and had retired as Head of English Department from Government college on 31.5.1997. He was having agricultural income of more than Rs.1 lac per year. Accused Balwinder Kaur was an income tax assessee since the year 1995 and had raised construction on a six marla plot after obtaining loan. Accused Gurdeep Singh owned property in village Threeke and was Crl.Rev.No. 2457 of 2009(O&M) 4 an agriculturist. He had inherited 2 ½ acres of land. He had sold land vide sale deed dated 8.2.1989. He was 70 years old man and the allegation, as per the challan, against him was qua Rs. 78,252/-. Harjinder Kaur was a house wife and had purchased property from income of her husband and allegation against her was qua Rs.5,334/-. Learned State counsel, on the other hand, has opposed these petitions and has submitted that accused Daljit Singh Grewal had purchased benami properties in the names of his co-accused, who were his near relatives. The said accused had disproportionate assets to the tune of Rs.6,22,00,000/-. He had amassed the said wealth by making recruitment of Home Guard volunteers. After hearing learned counsel for the parties, I am of the opinion that the present petitions deserve to be allowed. Although there are very serious allegations against accused Daljit Singh Grewal but during investigation, it was incumbent upon the investigating agency to have considered the income of his co-accused. Merely because the co-accused were being charged under Section 120-B IPC does not mean that the income of the co-accused was not to be considered. The co-accused, who have been charged for an offence under Section 120-B IPC, should have been given an opportunity to establish as to whether they were capable of purchasing the property alleged to have been purchased by accused Daljit Singh Grewal in their names by way of benami Crl.Rev.No. 2457 of 2009(O&M) 5 transactions. In case the said accused were successful in establishing that they had sufficient means to purchase the property and had, in fact, purchased the property in question out of their own funds, it would have a bearing on this case. Learned Special Judge, while dealing with this aspect, in para 40 of the impugned order, has held as under:- “It is next argued that income of salary of Jaswinder Kaur and Daljit Singh Grewal is Rs.13,22,477/- whereas according to income tax returns the salary of Jaswinder Kaur comes to Rs.8,02,906/-. The income of Jaswinder Kaur has been taken from the date she joined as teacher. Before that whether she has any income from any business as alleged, is matter of evidence and without verifying the sources of income, the income of Jaswinder Kaur prior to her joining as teacher cannot be added as it is. Since the co-accused have been charged only under Section 120-B IPC, therefore, income of co-accused is not to be considered. Since allegations of the prosecution are disproportionate assets of Daljit Singh Grewal, therefore, only his income and expenditure is to be considered.” Learned Special Judge, while holding that only the income of Daljit Singh Grewal was required to be considered, has committed a patent error. There is no doubt that Daljit Singh Grewal Crl.Rev.No. 2457 of 2009(O&M) 6 is the main accused in this case and allegation against him is that he has purchased the property in the name of his relatives as he has amassed property disproportionate to his known sources of income. The accused, who have been involved in this case under Section 120-B IPC were liable to be given an opportunity during investigation to establish that they had sufficient income to purchase the properties existing in their names. The investigating agency is required to conduct an inquiry in a fair and proper manner. However, in the present case, admittedly, the income of the co-accused of Daljit Singh Grewal has not been taken in consideration during investigation. In these circumstances, the impugned order is liable to be set aside on this score alone. Accordingly, these petitions are allowed. The impugned order, whereby the application filed by the petitioners for their discharge was dismissed and thereby charge was ordered to be framed against them, is set aside. The matter is remanded back to the trial Court and the learned Special Judge is directed to pass a fresh order in accordance with law. SABINA) JUDGE August 16, 2010 anita