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2005 DIGILAW 222 (JK)

Kehar Singh v. CBI

2005-08-11

NIRMAL SINGH

body2005
1. This is a petition under section 561-A Cr.P.C. (for short code hereafter) for quashing the proceedings pending in the Court of learned Judge, Special Court Anticorruption, Jammu in File No. 28of2003 under Sections 161,163,165A, 120B, 5(2) read with 5(1) (Clause D) Prevention of Corruption Act, 2006, (hereafter referred to as the Act) and also the charge sheet framed against the petitioner. 2. The case of the prosecution is that petitioner demanded a sum of Rs. 40,000/- from Janak Raj Sharma, complainant for settlement of his insurance claim of his gutted shop. We also directed the complainant to handover the bribed money to Shri U. K. Handoo. The complainant met U. K, Handoo surveyor in his office on 16.11.2002, who directed the complainant to at least pay Rs.15,000/- on 18.11.2002 as first installment and the rest of the amount they will receive after he receives the claim amount. The complainant lodged a complaint with Superintendent of Police CBI, Jammu on 16.11.2002 and consequently a trap was laid on 18.11.2002 by the CBI. The complainant handed over Rs.15, 000/- as settled on 16.11.2002 as first installment to U.K. Handoo, which was to be further paid to the petitioner. CBI recovered the tainted money from the possession of U.K. Handoo in the presence of independent witnesses Sunandan Kumar and others. 3. After completion of the investigation, challan was presented Before the learned Judge, Special Court Anticorruption, Jammu, who after perusing the documents and hearing the Pubic Prosecutor and counsel for the petitioner charge sheeted the accused persons vide order dated-3.1.2004. 4. Mr. P. N. Raina, learned counsel for the petitioner submitted that the learned trial court has erroneously charge sheeted the petitioners, without any prima facie evidence to connect the petitioner with regard to the money taken by U.K. Handoo. He further submitted that the learned trial court charge sheeted the petitioner simply on the basis of an allegation of the complainant that petitioner has demanded money for the settlement of his insurance claim. He contended that petitioner is neither to sanction nor to deal with the insurance case. He further submitted that even if the prosecution evidence remains un-rebutted and un-changed even then the petitioner couldn™t be convicted. When on the un-rebutted evidence of the prosecution the accused cannot be convicted then he cannot be charge sheeted. He contended that petitioner is neither to sanction nor to deal with the insurance case. He further submitted that even if the prosecution evidence remains un-rebutted and un-changed even then the petitioner couldn™t be convicted. When on the un-rebutted evidence of the prosecution the accused cannot be convicted then he cannot be charge sheeted. He submitted that it will be grave injustice for the petitioner to face the trial. He further submitted that the learned trial court, while framing the charge, has not taken into consideration the submissions raised by the petitioner. 5. After hearing learned counsel for the parties and perusing the record, 1 find no illegality, infirmity or jurisdictional error in the order framing the charge against the petitioners. 6. In R. P. Kapoor Vs. State of Punjab, AIR 1960 SC 866, following guide lines have been laid down for exercising the inherent powers under Section 561-A Cr.P.C. (i) Where it manifestly appears that there is a legal bar against the institution Or continuance of the criminal proceeding in respect of the offence alleged. Absence of the requisite sanction may, for instance, furnish cases under this category. (ii) Where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complainant or the First Information Report to decide whether the offence alleged is disclosed or not. (iii) Where the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge in dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence - which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under S. 561 -A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. In exercising its jurisdiction under S. 561 -A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Courts inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. 7. The Apex Court has further interpreted the provisions of Section 482 Cr.P.C Section 561-ACr.P.C. and laid down following guide lines in State of Haryana Vs. Ch. Baja Lal, AIR 1992 SC604:- "I) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. 2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under S. 156 (1) of the Code except under an order of S. 155 (2) of the Code. 3) Where the uncontroversial 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. 4) Where, the allegations in the F.I.R. do not constitute a cognizable offence-but constitute only a non-cognizable offence, no investigation is permitted by a police officer without any order of a Magistrate as contemplated under S.I 55(2) of the Code. 5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. 7) Where a criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." When the case of the petitioner is examined in the light of above guidelines, no case is made out for quashing the charge sheet. 8. The case of the prosecution is that petitioner demanded Rs. 40,000/- for the settlement of the insurance claim of Janak Raj Sharma, complainant. The petitioner also directed the complainant to hand over the said amount to U. K. Handoo, Surveyor of the Insurance Company. The complainant paid Rs.J5,000/- to U. K. Handoo as per the directions of the petitioner, as first installment. 9. Criminal misconduct has been defined in Section 5 of the Act. Clause (d) of Section 5 reads as under:- "(d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage." 10. Under sub-clause (2), for which the petitioner has been charged, when any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine. At the stage of charge the court has to simply see the broad aspects of the case and not to meticulously examine the material on record. It has also not to be seen whether the accused has to be convicted or acquitted. When the tainted money has been recovered from the accused or said money has been accepted by some one on his behalf and the money has been recovered from the other person then there is a presumption under the Act that the accused has accepted the illegal gratification other than legal remuneration. This presumption has to be rebutted by the accused. This presumption has to be rebutted by the accused. This presumption has not to be considered at the time of termination of trial but this presumption applies even at the time of framining the charge, as has been laid down by the Apex Court in R. S. Nayak Vs. A. R. Antulay and another, AIR 1986 SC, 2045, which reads as under:- ".... When the Court is called upon to consider whether a charge should be framed or not the question to which the Court has to address itself is whether the evidence led on behalf of the prosecution is such that if unrebutted it would justify the conviction of the accused and the Court has, therefore, to examine the evidence as it stands without rebuttal and come to a conclusion whether on the basis of such evidence the Court would convict the accused and where the offence charged against the accused is under Section 161 or Section 165 or Cl. (a) or C. (b) of sub-sec. (1) of Section 5 the Court must necessarily, apply the presumption under Section 4 while considering whether on the basis of the unrebutted evidence which is before it the Court would convict the accused......" From the material collected, there is a prima facie case for which the learned Judge Special Court, Anticorruption, has rightly charge sheeted the petitioner, as such, no interference is called for. The petition is, accordingly, dismissed.