R.R. Prasad, J.

1. This application is directed against the order dated 25.10.2010 passed by the leaned Special Judge, C.B.I, Dhanbad in R.C. No. 5A/ 2005 AHD (R) whereby the learned Special Judge rejected the application filed on behalf of the Petitioner under Section 227 of the Code of Criminal Procedure for discharging him from the case.

2. The facts giving rise to this application are that C.B.I registered a case being R.C. 5A/2005 AHD (R) against Bansilal (since died), father of the Petitioner under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act on the allegation that the said Bansilal during the period from 1990 to 2005 while functioning in various capacities in the department of Telecom (B.S.N.L) accumulated properties disproportionate to his known source of income. During investigation, it was found that the accused Bansilal had acquired movable and immovable properties in his name as well as in the name of the Petitioner (son of the deceased Bansilal) and his wife Pramila Devi worth Rs. 1,33,12,658/- which are disproportionate to his known source of income for which Bansilal could not account for satisfactorily and therefore, charge sheet was submitted under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act against the accused Bansilal (Since died) and also against the Petitioner under Section 109 of the Indian Penal Code read with Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Acton on an accusation that the Petitioner abetted his father in acquiring said assets by ill-gotten money. On submission of the charge sheet, cognizance of the offences was taken against the Petitioner. Thereupon an application was filed under Section 227 of the Code of Criminal Procedure for discharging the Petitioner from the case.

3. After hearing, learned Judge vide its order dated 25.10.2010 rejected the application for discharge by recording following findings.

Perused the case record. It appears that the charge sheet has been submitted against the Petitioner under Section 13(2) read with 13(1)(e) of the Prevention of Corruption Act and under Section 109 of the Indian Penal Code. From the charge sheet it is clear that during the investigation of the case, C.B.I found that Sant Kumar Gupta (Petitioner) is a Bachelor of Engineering. He did not get any employment anywhere and till date he Hilly depends on his father and he agreed to be one of the partners of the hotel running in the name and style of Shivam International, Station Road, Deoghar the construction cost of which as per the report of valuagtion cell, works out to Rs. 1,63,14,700/- and the Petitioner, Sant Kumar Gupta has been shown to have 50% share in the hotel and evidences gathered during investigation, have been found to be apt to prove the entire amount, over the above the amount of loan taken from Allahaad Bank, invested on the construction of the hotel M/s. Shivam International at Deoghar has actually been invested by the accused out of his ill-gotten money and the Petitioner Sant Kumar Gupta has purposely been made a name lender. From the charge sheet it is clear that omissions and commissions on the part of the said Petitioner, Sant Kumar Gupta lead to an irresistible conclusion that, he abetted his father accused, let Bansilal under Section 109 of the Indian Penal Code in the commission of offences punishable under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988. Therefore, there is sufficient material to frame charge against the Petitioner under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 and under Section 109 of the Indian Penal Code. Hence discharge Petitioner is hereby dismissed.

4. The said order was challenged in this revision application. Upon hearing the question which was framed to be decided was recorded under order dated 28.1.2011 which is as follows.

The question which has been raised in this revision application, is that whether the prosecution can proceed with the charge of abatement levelled against the Petitioner in absence of the main accused who has died in a case relating to Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act.

5. Mr. Deepak Bharti, learned Counsel appearing for the Petitioner submits that No. doubt a person, not being public servant, can be tried under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption act along with the main accused for abetting the main accused for doing a thing which is an offence by adding or by instigating or by hatching conspiracy with others but in order to prove the charge of abatement, first essential requirement of law would be to prove charge against public servant. In the instant case, since the main accused (father of the Petitioner) has died, the charge against him cannot be proved in the trial. In the eventuality there would be hardly any scope for the prosecution to prove the charge against the Petitioner of having abetted his father to commit offence as alleged. Therefore, it would be futile exercise on the part of the C.B.I to put this Petitioner on trial as even by adducing all the evidences against the Petitioner, the Petitioner cannot be held guilty for the charges to be framed against the Petitioner under Section 109 read with Section 13(1)(e) and Section 13(2) of the Prevention of Corruption Act.

6. In support of his submission, learned Counsel put his reliance in a case of Kartongen Kemi Och Forvaltning AB v. State through C.B.I 109 (2004) DLT 652 arising out of much highlighted case of Bofors Gun.

7. Learned Counsel submits that in that case public servants Rajiv Gandhi and S.K. Bhatnagar were charged for having committed criminal misconduct by abusing their official positions so as to gain pecuniary advantages to all of them and having taken illegal gratification for awarding the contract in favour of Bofors, Hinduja Brothers, Martin Ardbo and Win Chadha who were alleged to have abetted public servant to commit such offences.

8. When the matter came before the Delhi High Court after the discharge petition of the accused persons including abettors were dismissed, one of the submissions put forth before the Court that so far as the charge of abatement of cheating is concerned, even if the evidence collected by the C.B.I and perhaps to be produced by it is assumed to be correct, still the fact remains that the persons against whom the evidences will be produced are No. more and therefore, evidence would go undefended and unchallenged which is against the Cardinal principle of trial that any trial in absence of accused is No. trial or any evidence produced, in absence of accused which has not been subjected to cross-examination nor the accused would be in a position to lead his defence, is No. evidence in the eyes of law and as such, in absence of public servant, namely, Rajiv Gandhi and S.K. Bhatnagar being dead, charge of abatement levelled against the other accused persons cannot be proved which submission was accepted by the Court and that was one of the grounds on which the order by which charges were framed against the Petitioner of that case of abetting the public servant to commit criminal misconduct by abusing their official position by taking illegal gratification for awarding the contract were quashed.

9. Learned Counsel further submits that similar is the position here as the Petitioner being son of the deceased public servant has been alleged to have abetted his father to acquire property disproportionate to his known source of income and since father of the Petitioner has died, charge of abatement put forth against the Petitioner cannot be proved and as such, the Petitioner is entitled to be discharged from the case.

10. As against this, Mr. Mokhtar Khan, learned Counsel appearing for the C.B.I. Submits that under the Indian law for an offence of abatement, it is not necessary that the offence should have been committed and as such, a man can be guilty as abettor whether the offence is committed or not and therefore, it cannot be held in law that the person cannot ever be convicted for abetting other accused to commit offence when the person alleged to have committed that offence in consequence of the abatement has been acquitted or died. Much emphasis was put that offence of abatement is complete when the alleged abettor has instigated another or engaged with another in a conspiracy to commit offence. It is not necessary for the offence of abatement that the act abetted must be committed.

11. Learned Counsel in support of his submission has referred to decision rendered in a case of Faguna Kanta Nath v. State of Assam : AIR 1959 SC 673 and in a case of Jamuna Singh v. State of Bihar : AIR 1967 SC 553 .

12. In the context of the submission made on behalf of the parties, one needs to take notice of the relevant provisions of the Indian Penal Code (Sections 107, 108, 109 and 115).

107, A person abets the doing of a thing, who -

First - Instigates any person to do that thing, or

Secondly - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing, or

Thirdly - Intentionally aids, by an act or illegal omission, the doing of that thing.

Explanation 1. - A person who by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure a thing to be done, is said to instigate the doing of that thing.

Explanation 2, - Whoever, either prior to or a the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.

108. A person abets an offence, who abets either the commission of an offence, or the commission of an act which would be an offence, if committed by a person capable by law of committing an offence with the same intention or knowledge as that of the abettor.

Explanation 2. - The constitute the offence of abetment it is not necessary that the act abetted should be committed, or that the effect requisite to constitute the offence should be caused.

Illustrations

(a) A instigates B to murder C, B refused to do so. A is guilty of abetting B to commit murder.

109. Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and No. express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.

Explanation - an act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.

115. Whoever abets the commission of an offence punishable with death or imprisonment for life, shall if that offence be not committed in consequence of the abetment and No. express provision is made by this Code for the punishment of such abet, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to imprisonment of either description for a term which may extend to fourteen years, and shall also be liable to fine.

13. On its perusal what emerges out is that Section 107 of the Indian Penal Code does postulates that a person abets the doing of an act in either of three ways which can be; instigating any person to do an act; or engage with one or more other persons in any conspiracy for the doing of that act, or intentionally aiding the doing of that act. If a person instigates another or engages with another in a conspiracy for the doing of an act which is an offence, he abets such an offence and would be guilty of abetment under Section 115 or under Section 116 of the Indian Penal Code, even if an offence abetted is not committed in consequence of the abetment. The offence of abetment is complete when the alleged abettor has instigated another or engaged with another in a conspiracy to commit the offence. It is not necessary for the offence of abetment that the act abetted must be committed. This is clear from Explanation 2 and illustration (a) thereto, to Section 108 of the Indian Penal Code.

14. Thus, it can very well be said that under the Indian Law for an offence of abetment, it is not necessary that the offence should have been committed. A man may be guilty as an abettor whether the offence is committed or not.

15. However, the question which has fallen for consideration as to whether an abettor can be put to trial or proceeded with the charge of abatement when the main accused has died.

16. In a situation, where both the main accused and the abettor have been charged for committing offence but if the main accused dies, in that event, he cannot be proceeded with trial and be condemned as he could not have defended himself and as such for all practical purposes, he would be deemed to have been acquitted. In spite of that, an abettor can be proceeded with the trial, if he has been alleged to have instigated the main accused to commit offence or he conspired with other accused including the accused who was acquitted to commit offence. But if it is the case of the prosecution that the abettor intentionally aided another including the person who was acquitted to commit offence, the charge in view of Explanation 2 to Section 107 would fail against the abettor in case main accused is acquitted.

17. The aforesaid proposition has been laid down by the Honble Supreme Court in a case of Faguna Kanta Nath v. State of Assam (supra) wherein it has been observed as follows:

It is not the case of prosecution that the Appellant abetted the offence of instigating Khalilur Rahman to demand illegal gratification; not has the prosecution set up or proved a case of conspiracy between the Appellant and the Khalilur Rahman for the commission of an offence under Section 161 On the findings of the Cort the Appellant received the money for and on behalf of Khalilur Rahman and the evidence of the complainant is that Khalilur Rahman had asked him to hand over the money to the Appellant. If Khalilur Rahman is acquitted and therefore, the offence under Section 161 is held not to have been committed, then in this case No. question of intentionally aiding by any act or omission the commission of the offence arises.

18. Subsequently, the said proposition was reiterated by the Honble. Supreme Court in a case of Jamuna Singh v. State of Bihar (supra). On the touch stone of the aforesaid principle, if one proceeds to consider the case in hand the Petitioner cannot be proceeded with trial. I may point it out again that though the aforesaid principle has been laid down, in a case where the main accused gets acquitted. But here it is the case that the main accused has died but the effect, in my view, would be the same as the dead person cannot be found guilty for the charge levelled against him. The facts emerging out from the order passed by the court below are that the Appellant has been charged on an accusation that certain properties were acquired by the main accused through ill-gotten money stands in the name of the Petitioner, though the Petitioner had No. means to acquire that property and thereby the Petitioner by facilitating his father to acquire property by ill-gotten money aided him the doing of that act. In that backdrop of the allegation, it is certainly not the case of the C.B.I that this Petitioner either abetted an offence by instigation or hatching conspiracy with his father to commit offence as alleged rather case appears to be of aiding his father of doing that act and hence, in absence of the main accused who died, the charge of abetting his father by aiding him to commit offence as alleged can not be proved. Therefore, the principle which has been laid down in the cases referred to above equally applies in the present case, even though it is not the case where the main accused has been acquitted, rather it is the case where the main accused has died. More or less, similar issue fell for consideration before the Delhi High Court in a case of Kartongen Ketni Och Forvaltning AB v. State through C.B.I (supra) which was related to Bofors gun case wherein public servant Rajiv Gandhi and S.K. Bhatnagar had been charged for having committed criminal misconduct by abusing their official positions so as to gain pecuniary advantages to all of them and having taken illegal gratification for awarding the contract in favour of Bofors, Hinduja Brothers, Martin Ardbo and Win Chadha. In that case, when the application for discharge filed on behalf of alleged abettor, namely, A.B. Bofors, Hinduja Brothers was rejected, the matter came to the Delhi High Court wherein one of the submissions were advanced that in absence of public servant, namely, Rajav Gandhi and S.K. Bhatnagar who had died, the abettor cannot be proceeded with the trial as in any event, in absence of accused who died, it cannot be proved that they had committed offence and hence, abettor cannot be said to have abetted the offence which cannot be proved to have been committed. The said submission did find favour as it was one of the grounds of allowing the application. In this context, the court did observe as follows:

Once it is found that charge of conspiracy against the public servants cannot stand nor can be proved the question of proving the charge of abetment against the Petitioners and even other players in this game does not arise as the genesis of the charge against them is charge against the public servants. Thus, in the absence of public servants against whom main charge of conspiracy was made, charge of abetment of conspiracy with public servants to cheat the Government of India and misuse of official position by public servants and taking bribe by public servants for awarding the contract to M/s. A.B Bofors against the intermediary or the Petitioners who are not public servants can neither be framed nor subjected to trial.

19. Under the circumstances, it is irresistibly held that the Petitioner in the event of death of the main accused cannot be proceeded with the trial and hence, the impugned order dated 25.10.2010 passed by the Special Jduge, C.B.I. Dhanbad in R.C. No. 5A/2005 AHD(R) under which prayer for discharge has been rejected is hereby quashed. Consequently, the Petitioner stands discharges The question framed is answered in negative.

20. In the result, this application is allowed.