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2002 DIGILAW 57 (KER)

E. T. Vijayan v. State Of Kerala

2002-01-23

G.SASIDHARAN

body2002
Judgment :- G. Sasidharan, J. This petition is filed by the 2nd accused in V.C.NO.10/2000 of Vigilance and Anti Corruption Bureau, Wayanad for quashing the first information report and the entire proceedings in the crime. Petitioner was working as Assistant Engineer, Karapuzha Irrigation Project Section II / III Sulthan Batheri in Wayanad District in the Irrigation Department in Kerala Government Service. In connection with the "Janakiyasuthranam" the work of construction of kitchen room to Anganwadi building in ward No. IV of Nenmeni Panchayat was given by the Panchayat to one Mr. A.K. Chandran. He was the Convener of the above work. On the basis of the complaint made by Chandran in respect of the above work, Vigilance case 10/2000 was registered against the petitioner and 1st accused Mr. Soloman who was Overseer in-charge of the work. The allegation in the case is that the 1st accused and the petitioner demanded illegal gratification for getting the final bill for the work of the construction of kitchen to the Anganwadi building from Sri. Chandran and they accepted bribe amount of Rs .1,000/- from him. 2. According to the petitioner, the allegations against the accused in the above crime will not make out any offence against the petitioner which, if unrebutted, would warrant his conviction under Section 7 of the Prevention of Corruption Act .It is stated for and on behalf of the petitioner that the statements in the first information report and the recovery mahazar and other documents will not go to show that the petitioner has committed any offence under the Act . The case of the petitioner is that on going through the F.I.R and other documents it will be seen that there is no allegation of demand of bribe illegal gratification made by the petitioner . The submission is that the 1st accused was the Overseer in - charge of Nenmeni Panchayat in connection with the work and the allegation is that the demand for bribe was made by the Overseer. There is allegation that Chandran , the Convener of the work met the petitioner in his office and made a demand to inspect the work after the completion of the work and then the petitioner told him that since the work was a small work it need only be supervised , checked and bill prepared by the Overseer , the 1st accused . The submission made for and on behalf of the petitioner is that the complaint of Chandran is that when he approached the petitioner for getting the payment under the bill for the work done by him, the petitioner told him that if he had to put his signature in the bill, he had to be treated by spending money . According to the learned council appearing for the petitioner, such a statement alleged to have been made by the petitioner, even if it is accepted as true, cannot be said to be a demand made by the petitioner for bribe or illegal gratification . 3. Pursuant to the complaint made by Chandran , a trap was made under the leadership of vigilance deputy S.P , wayanad on 26-7-2000 . The petitioner would say that on 20-7-2000 first accused borrowed an amount of Rs.400 from the petitioner and on 26-7-2000 at about 6 p.m complainant came to the petitioner's quarters and while the petitioner and Chandran were talking, the first accused Solomon came to the room in the quarters and while the petitioner and Chandran were talking, the 1st accused Soloman came to the room in the quarters and asked Chandran to go out of the quarters so that he could talk to him. It is the case of the petitioner that 1st accused and Chandran went out of the room and after some time, 1st accused came back to the room where the petitioner was sitting and handed over to the petitioner Rs. 400/- towards repayment of the loan taken from the petitioner on 20-7-2000. Then the Dy.S.P., Vigilance and two tahsildars came inside the room and introduced themselves and thereafter, Chandran also came to the room. According to the petitioner, the Dy.S.P. asked Chandran who actually demanded money from him and then Chandran told the Dy.S.P. that it was the Overseer Soloman who demanded money and he gave 10 hundred rupee notes to Soloman. Six 100 rupee notes were taken from the pocket of Soloman and four 100 rupee notes were taken from the pocket of Soloman and four 100 notes were taken from the pocket of the shirt of the petitioner. Then phenolphthalein test was conducted. Petitioner and the 1st accused were arrested by the Dy.S.P., Vigilance and were taken into custody and produced before Court. 4. Then phenolphthalein test was conducted. Petitioner and the 1st accused were arrested by the Dy.S.P., Vigilance and were taken into custody and produced before Court. 4. The argument advanced by the learned counsel appearing for the petitioner is that for constituting an offence alleged against the petitioner it has to be established that there was demand for bribe made by the petitioner. It is also submitted that in addition to demand for bribe, there must be materials to show that there was acceptance of money as illegal gratification. The allegation here is that this was a trap case and tainted money was recovered from the pocket of the shirt of the petitioner. What is sought to be established by the above fact is that the tainted money which was given by Chandran was seen in the pocket of the shirt of the petitioner. The main point urged by the learned counsel appearing for the petitioner is that in so far as there is no material to show that there was demand made by the petitioner for bribe, it can be said that even as per the allegations leveled against the petitioner no offence under the Prevention of Corruption Act was made out. In M.K. Harshan V. State of Kerala (AIR 1995 SC 2178) the Supreme Court held that in all types of cases in bribery, two aspects are important; one, there must be a demand and two, there must be acceptance in the sense that the accused has obtained the illegal gratification. It was also held that mere demand by itself is not sufficient to establish the offence and the other aspect, namely, acceptance is very important. So, it is necessary that for constituting the offence, there has to be demand for bribe and there is acceptance of money by way of illegal gratification. The submission made for and on behalf of the petitioner is that the investigating agency has no case that there was demand made by the petitioner and hence, even if on the basis of the materials relied on by the investigating agency regarding recovery of tainted money from the pocket of the shirt of the petitioner it could be said that there is allegation that the petitioner received illegal gratification, all the ingredients for the commission of the offence are not prima facie established. 5. 5. Normal rule is that proceedings instituted against the accused alleging commission of offences must be tried under the provisions of the Criminal Procedure Code and Courts will have to be reluctant to interfere with the proceedings. There may be certain cases in which the inherent jurisdiction of the High Court can be exercised for quashing the proceedings even at an interlocutory stage. When it is patent that institution or continuance of the prosecution proceedings against an accused may amount to abuse of the process of the Court, then the Court will be justified in quashing the proceedings. Quashing of criminal proceedings is permissible also in cases where the Court is satisfied that the quashing of the impugned proceedings is necessary for securing the ends of justice. Looking at the materials which are sought to be relied on for initiating criminal proceedings against an accused, it may appear to the Court that there is no legal evidence in support of the allegation regarding the commission of the offence. There may be cases in which the evidence which is sought to be relied on in support of the allegation regarding the commission of the offence is manifestly and clearly inconsistent with the accusation made against the accused. The legal evidence which is sought to be relied on for bringing home the offence may not support the case of the investigating agency that the offence was committed in a particular manner. Then it is not possible to say that a case regarding the commission of a particular offence has been, prima facie, made out against the accused. In such cases, the Court will be justified in interfering in criminal proceedings at interlocutory stage and quashing the proceedings in exercise of the inherent jurisdiction. 6. In State of Haryana V. Bhajan Lal (1992 Supp (1) SCC 335) the Supreme Court dealing with the powers of the Court under section 482 of the Criminal Procedure Code dealt with the instances in which criminal proceedings can be quashed. Where the allegations made in the first information report or the complaint even if they are taken at the face value and accepted in their entirely, do not prima facie constitute any offence or make out a case against the accused the Court will be justified in quashing the proceedings. Where the allegations made in the first information report or the complaint even if they are taken at the face value and accepted in their entirely, do not prima facie constitute any offence or make out a case against the accused the Court will be justified in quashing the proceedings. There may be cases in which the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. When the allegations against an accused regarding the commission of the offence are inherently improbable or absurd, the continuance of the proceedings will not be in the interest of justice. When the allegations are inherently improbable or absurd on the basis of which no prudent person can ever reach a just conclusion that there will be no sufficient ground for proceeding against the accused the Courts will be justified in quashing proceedings in exercise of the power under section 482 of the Criminal Procedure Code where it is manifest that the proceeding is initiated maliciously with the intention of wreaking vengeance on the accused. 7. The counsel appearing for the petitioner would say that the allegations against the petitioner regarding the commission of the offence are inherently improbable for the reason that in the first information report it is stated that there was demand made by the 1st accused for giving Rs. 1000/- as bribe by saying that Rs. 500/- was for being to the petitioner but at the time when the Dy. S.P., Vigilance made the trap Rs. 600/ was recovered from the pocket of the shirt of the 1st accused and Rs. 400/- was recovered from the pocket of the shirt of the 1st accused. According to the learned counsel appearing for the petitioner, the case regarding the trap and the alleged recovery of currency notes from the petitioner and the other accused is against what is stated to have been said by the 1st accused at the time when the demand for bribe was made. The submission is that if as a matter of fact the demand for bribe was made on the understanding that Rs. 500/- had to be paid to the petitioner, Rs. 500/- would have been there in the pocket of the shirt of the petitioner. The submission is that if as a matter of fact the demand for bribe was made on the understanding that Rs. 500/- had to be paid to the petitioner, Rs. 500/- would have been there in the pocket of the shirt of the petitioner. This, according to the learned counsel, is an inconsistency between the allegation regarding the commission of the offence and the materials sought to be relied on for establishing the allegation against the petitioner and the other accused. Another point mentioned by the learned counsel appearing for the petitioner is that if as a matter of fact the giving of money by the contractor to the accused was in the quarters of the petitioner there was no reason why the money was received by the 1st accused whereas the petitioner is the person who was staying in the quarters. 8. As adverted to earlier, where a criminal proceeding is manifestly attended with mala fide and where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused, continuance of the proceedings can be prevented by court for securing the ends of justice. In State of Kerala V. K.C. George (1984 KLT 315) relying on the decision in Government of India V. Tharak Nath (AIR 1971 SC 823) it was observed that malafide exercise of power does not mean any dishonest motive and that is the power is exercised not in the circumstances which warrant the exercise of power, that might amount to malafide exercise of power. The Division Bench of this Court in the above decision said that the malafides of the action lies in the absence of valid consideration. The counsel appearing for the petitioner regarding the commission of the offence was made even though in the circumstances available the allegation regarding the offence could not be made. The allegations are made, according to the councel, without any basis and the prosecution of the petitioner alleging commission of the offence under the prevention of corruption Act was made is malafide exercise of power for the reason that the circumstances which exist do not justify initiation of criminal proceedings against him. 9. There may be cases in which the accused persons file application in the trial court for their discharge. 9. There may be cases in which the accused persons file application in the trial court for their discharge. When such applications are filed in the trial court and arguments are advanced on the question of discharge of the accused on the basis of application for discharge, the Court may, if there are sufficient reasons for discharge, take a decision that the accused can be discharged. On hearing the arguments advanced for and on behalf of the accused and on considering the applications for discharge if the Magistrate finds that the accused need not be discharged and there is ground for proceeding further, decision can be taken by the trial Court for proceeding further. A Magistrate trying a case has jurisdiction to discharge the accused at any stage of the trial, if he considers the charge to be groundless. Even in cases in which the accused persons had already filed an application in the trial Court for discharge of the accused and the trial Court has taken a decision that there are reasons for proceeding with the trial of the case against the accused the High Court can entertain application under section 482 of the Criminal Procedure Code for quashing the proceedings and if it is found that the proceedings are liable to be quashed, the Court can quash the proceedings irrespective of the fact that the trial Court had already taken a decision that the case was one in which the discharge of the accused need not be made. 10. In Pepsi Foods Ltd. and another V. Special Judicial Magistrate and others ( (1998) 5 SCC 749) the Supreme Court held that the Magistrate can discharge the accused at any stage of the trial if he considers the charge to be groundless but that does not mean that the accused cannot approach the High Court under Section 482 of the Criminal procedure Code or Article 227 of the Constitution to have the proceedings quashed against him when the complaint does not make out any case against him. In Suri and another V. State of U.P. and others ( (2000) 2 SCC 636) also the Supreme Court took the same view. In Suri and another V. State of U.P. and others ( (2000) 2 SCC 636) also the Supreme Court took the same view. There the Supreme Court said that merely because the accused persons had already filed an application in the Court for their discharge it cannot be said that the High Court cannot exercise its jurisdiction under section 482 of the code. Though the Magistrate trying a case has jurisdiction to discharge the accused at any stage of the trial if he considers the charge to be groundless, that does not mean that the accused cannot approach the High Court under section 482 of the Code or Article 277 of the Constitution to have the proceedings against them when no offence has been made out against them. The above observation was made by the Supreme Court in the above case on accepting the proposition laid down in the Pepsi Foods' case referred to above. The jurisdiction under Section 482 of the Criminal Procedure Code has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice. Jurisdiction under the above section has to be exercised with great care and caution. In exercising the above jurisdiction the High Court has to examine the question in a careful manner and in cases in which the jurisdiction has to be exercised the Court is expected to do that even though the proposition is that the jurisdiction has to be exercised with great care and caution. 11. The submission made for and on behalf of the petitioner is that the allegations against the petitioner regarding the commission of the offence are not sufficient for allowing the Court to proceed with the trial. If in a case in which even if the allegations made against an accused are established, that will not constitute the commission of an offence, no purpose will be served by proceeding with the case for the reason that finding guilty of the accused of the offence at the time of culmination of the trial will not be possible. If in a case in which even if the allegations made against an accused are established, that will not constitute the commission of an offence, no purpose will be served by proceeding with the case for the reason that finding guilty of the accused of the offence at the time of culmination of the trial will not be possible. Summoning an accused in a criminal case is a serious matter and by asking the accused to stand trial even though there are no sufficient materials to show even prima facie that the person who is going to be tried is guilty of the offence what will happen at the culmination of trial will be an acquittal. If Court is convinced even at the preliminary stage that the allegations made against a person, who is an accused in a case, are fully established, that will not lead to a conclusion regarding the commission of the offence the trial of an accused in such a case will be abuse of the process of the Court which will be a sufficient reason for the Court to quash the proceedings. It is necessary to examine the nature of allegations made against an accused for seeing whether the allegations made against the accused, if established, will constitute sufficient ground for saying that he committed the offence alleged against him. 12. In G.D.Sing V. State Of Madhya Pradesh (1990 M.P.L.J. 39) it was held that before a charge is framed against an accused in respect of any offence under the Penal Code, it is for the prosecution to satisfy the Court that the material on record makes out a prima facie case against him or that it is such that it gives rise to a strong suspicion that the accused has committed the crime. The Court said that mere conjectures and surmises cannot constitute the material contemplated as furnishing ground for framing charge. The Court said that in a criminal trial the accused has the shield of presumptive innocence around him and that barring offences where the Legislature, in public interest, excludes mens rea as a constituent of the crime and makes the criminal liability absolute, actus reus (unlawful act) and mens rea (guilty mind) both must concur to constitute the crime. The Court said that in a criminal trial the accused has the shield of presumptive innocence around him and that barring offences where the Legislature, in public interest, excludes mens rea as a constituent of the crime and makes the criminal liability absolute, actus reus (unlawful act) and mens rea (guilty mind) both must concur to constitute the crime. It was on observing so that the Court held that before any charge is framed against an accused in respect of any offence it is for the prosecution to satisfy the court that the material on record makes out a prima facie case against him. This Court in Mohammed Sheriff V. State of Kerala (2000 (3) KLT 558) held that it is well settled that for framing charge against an accused it is the duty of the prosecution to satisfy the Court that the materials on record make out a prima facie case against him and conjectures and surmises cannot constitute the ground for framing charges. On the basis of the above decision, the argument advanced for and on behalf of the petitioner is that in the present case there is no material to show that the allegation against the petitioner regarding the commission of the offence is at least prima facie established. As pointed out by the learned counsel appearing for the petitioner, if no useful purpose will be served by proceeding with the case, the Court will be justified in quashing the proceedings even at the initial stage in exercise of the powers under Section 482 of the Criminal procedure code. If the chance of ultimate conviction is bleak, it can be said that no useful purpose will be served by proceeding with the case. If the chance of ultimate conviction is remote, the Court will be justified in quashing the proceedings in a criminal case. 13. In the first information report, Annexure-1 it is stated that the petitioner told the first informant that he would put his signature in the bill only if the first informant was prepared to spend money for treating him. There is also statement that the petitioner told him that he had already informed the Overseer about the details. 13. In the first information report, Annexure-1 it is stated that the petitioner told the first informant that he would put his signature in the bill only if the first informant was prepared to spend money for treating him. There is also statement that the petitioner told him that he had already informed the Overseer about the details. The submission made by the learned counsel appearing for the petitioner is that there may be allegation against the petitioner that there was demand made by him for bribe and there was acceptance of money by him as illegal gratification. The submission made is that the statement given by the first informant that for the purpose of putting the signature in the bill the petitioner told the first informant that he had to spend money, cannot be considered as a demand made by the petitioner for bribe. It is true that the first informant says that the petitioner told him that for putting signature in the bill the first informant had to spend money. In addition to such a statement in the first information report, there is also statement that the petitioner told the first informant that he had already told the other accused, the Overseer as to what the first informant had to do and that at 6.30 p.m. the first informant along with Soloman had to take the money to the quarters of the petitioner situate near to the Kerala State Road Transport Corporation garage. The above statement made by P.W.I. is regarding the demand alleged to have been made by the petitioner. So, there is no merit in the submission made by the learned counsel appearing for the petitioner that there is no material which would indicate that there was demand made by the petitioner for bribe. This is a trap case and there are materials made available by the investigating officer before Court to show that four currency notes of the denomination of Rs. 100/- were taken from the pocket of the shirt of the petitioner and phenolphthalein test was conducted in the presence of the witnesses. The test conducted showed positive result. In respect of the recovery of four currency notes from the pocket of the shirt of the petitioner the case of the petitioner is that on demand made by the Overseer the petitioner lent him an amount of Rs. The test conducted showed positive result. In respect of the recovery of four currency notes from the pocket of the shirt of the petitioner the case of the petitioner is that on demand made by the Overseer the petitioner lent him an amount of Rs. 400/- and on the relevant date the Overseer came to his quarters and gave him four 100 rupee notes towards repayment of the loan. It was at that time the Deputy Superintendent of police, vigilance along with the witnesses went inside the room where the petitioner was sitting and the four 100 rupee currency notes were taken from out of the pocket of his shirt. Except the statement in the petition there are no materials to indicate at this stage that the four currency notes were given by the Overseer to the petitioner towards repayment of the loan he had taken from the petitioner. 14. What is said in the first information report is that the 1st accused, the Overseer told the first informant that an amount of Rs. 1,000/- had to be paid for sanctioning the bill and that an amount of Rs. 500/- from out of that was for being paid to the Engineer Vijayan, who is the petitioner. At the time when the trap was made only four currency notes (400) were recovered from the pocket of the petitioner. The above fact is pointed out to say that the allegation is inconsistent with what has been placed before Court as materials to support the allegation regarding the commission of the offence and hence the allegation can be said to be inherently improbable and absurd so that the proceedings in the case can be quashed. The mere fact that there is some contradiction as pointed out by the learned counsel appearing for the petitioner in respect of the amount demanded by the petitioner as per the statement of the co-accused, cannot be taken as a ground for quashing the entire proceedings. 15. According to the petitioner, Annexure-5 is the relevant page of the Log Book maintained for the vehicle which was being used by the petitioner. The above document has been for the purpose of showing that at the relevant time the petitioner was on tour and he was in Kalpetta. 15. According to the petitioner, Annexure-5 is the relevant page of the Log Book maintained for the vehicle which was being used by the petitioner. The above document has been for the purpose of showing that at the relevant time the petitioner was on tour and he was in Kalpetta. In Annexure-5 it is stated that on 26-7-2000 the vehicle mentioned in that document started from Sultan Batheri at 8 a.m. and came back to Sultan Batheri at 6 p.m. Annexure-5 is a Photostat copy of a sheet in a log book and on the basis of that, it cannot be said that the petitioner performed journey by going to Kalpetta and for that he started from Sultan Batheri at 8 a.m. and came back only at 6 p.m. Relying on Annexure-5 the petitioner cannot ask for quashing the entire proceedings. This is a case in which the petitioner has not succeeded in establishing sufficient grounds for quashing the proceedings in the case. The petition is hence dismissed.