JUDGMENT Hon’ble Vinod Prasad, J.—Revisionist Kailash Nath Tripathi posted as Inspector (Anti-Corruption Organization) in District Varanasi has invoked revisional power of this Court under Sections 397/401, Cr.P.C. challenging the order dated 20.1.2007 passed in Special Trial No. 11 of 2004, State v. Chandrama Singh and others by which Special Judge (Anti Corruption), Gorakhpur has refused to discharge him for offences under Section 13(1) and (2) of Prevention of Corruption Act. 2. In brief the preceding facts are that a complaint No. 142 of 2000 was filed by Union of India against accused Kamala Singh son of Late Raj Nath Singh for offences under Sections 8/20/23 of NDPS Act and under Section 11 of Customs Act in the Court of Special Judge/Additional Session’s Judge, Court No. 4, Azamgarh on 7.11.2000 with the allegations that the Complainant Achal Kumar Agarwal is the Custom Inspector posted in District Azamgarh. On 22/23.10.2000 at 9 p.m., on the basis of a secret information he laid a trap on Azamgarh-Dohari route near Jianpur for seizing truck No. WB 25-2335 which was proceeding towards Tundala coming from Assam. At 12.00 a.m. he intercepted the said truck. On inquiry the driver of the truck informed him that there was no illegal contraband in the truck but because there was a secret information hence the complainant alongwith his companions Inspector Rajeshwar Prasad and Rajiv Kumar Biswas started proceeding towards Customs office. In the way Circle Officer (City) sent the truck to PS Kotwali on the ground of over loading. On 23.10.2000 at 11.30 a.m. the truck was returned to the customs department because of intervention of higher officers. Thereafter the truck was brought to the customs office and was searched which led to the discovery of 250 Kg. of Ganja kept in bags which on being tested was detected as Nepali Ganja. Driver of the said truck also confessed it to be Ganja. In rest of the 340 bags laden on the truck there was tea leafs weighing 11300 grams. Driver of the truck Kamala Singh also disclosed that he was offered Rs. 10,000/- as rent and the owner of the Ganja has told him to meet him at Unnao on 24.10.2000. With the aforesaid allegations the complaint was laid in the Court by the complainant as offences mentioned above were disclosed against the accused Kamala Singh. 3. Driver of the truck Kamala Singh also disclosed that he was offered Rs. 10,000/- as rent and the owner of the Ganja has told him to meet him at Unnao on 24.10.2000. With the aforesaid allegations the complaint was laid in the Court by the complainant as offences mentioned above were disclosed against the accused Kamala Singh. 3. In the said complaint case accused Kamala Singh moved his bail application which was rejected by Additional Session’s Judge, Court No. 4, Azamgarh vide his order dated 12.12.2000. Accused then filed his bail application in this Court being Criminal Misc. Bail Application No. 588 of 2001, Kamal Singh v. State of U.P., which came up for disposal before Hon’ble S.K. Agarwal J. His Lordship finding conduct of the Circle Officer (CO City) to be dubious ordered for an inquiry vide his order dated 9.4.2001. 4. It seems that on the basis of the above order passed by this Court that a preliminary inquiry was conducted by C.B.C.I.D. in crime number 980 of 2001and after the said preliminary inquiry that a FIR was lodged by Akramul Haq, Sector Officer, C.B.C.I.D., U.P. Gorakhpur on 28.9.2001 for offences under Sections 162/218/211/120B, IPC and Section 13 (1) Prevention of Corruption Act at Police Station Kotwali District Azamgarh showing the incident to be of 23.10.2000 at 12.30 a.m. against accused persons Chandrama Singh, Circle Officer (City) Azamgarh, Kailash Nath Tripathi, Inspector In charge Kotwali, Azamgarh (Present Revisionist), Constables Ravindra Singh, Rakesh Kumar and one more constable as C.B.C.I.D. case crime number 756 of 2001. 5. It was alleged in the FIR that on the instructions of Chandrama Rai, Custom Superintendent, who had received some secret information, custom Inspector Achal Kumar Agarwal, alongwith Rajiv Kumar Biswas, Rajeshwar Prasad, and constables Narendra Lal Srivastava, Bharat Maurya, Lakshman Maurya, Moti Lal, S.K. Pandey, Bhola Ram in an official Jeep reached Jianpur crossing at 10 p.m. and intercepted truck No. WB 25-2335 and demanded papers from the driver. They also started looking inside the truck after getting the torpoline loosened. Cleaner of the truck meanwhile escaped from the spot. When driver was informed by the customs officers that they had got the information of illegal ganja being transported in the truck that the driver became agree to take the truck to a safe place for being searched. They also started looking inside the truck after getting the torpoline loosened. Cleaner of the truck meanwhile escaped from the spot. When driver was informed by the customs officers that they had got the information of illegal ganja being transported in the truck that the driver became agree to take the truck to a safe place for being searched. Constable Bhola Ram and Moti Lal boarded the truck and rest of the custom officers and constables followed them in the departmental jeep to Sidhari Custom Office. When they reached ahead on Kalinganj, Circle Officer Chandrama Singh got the said truck stopped. Inspite of the fact that Circle officer was informed by the customs officers that they had got the information regarding illegal contraband of Ganja being loaded in the truck Circle officer accosted them and forcibly took the truck to police station Kotwali District Azamgarh and there at the police station the present revisionist booked the truck under Sections 177/194/113 Motor Vehicles Act by showing it over loaded vide Rapat No. 2 dated 23.10.2000 at 1.30 p.m. and further showing that they had apprehended the said truck from Hafizpur Crossing. They also by showing a false challan released truck driver on his furnishing a personal bond. They also detained the truck at the police station till 23.10. 2000 at 11.30 p.m. It was also alleged in the FIR that the location of the Circle officer did not tally with log book and Control Room also did not have any information regarding his movement. Mentioning further details of preliminary inquiry it was alleged in the FIR that the act of booking the truck under Motor Vehicles Act was all sham and just to save the skin in the matter of illegal seizure as the matter reported to the higher police officers that the accused persons prepared a false challan and therefore they are guilty of offences mentioned in the FIR. 6. Follow up investigation into the crime resulted into laying a charge-sheet against the revisionist also for offences under Sections 162/218/211/120B, IPC and Section 13 (1) of Prevention of Corruption Act in the Court which took cognizance of the offences and registered Special Trial No. 11 of 2004, State v. Chandrama Singh and others and summoned the accused person including the revisionist. The revisionist preferred Criminal Writ Petition No. 7914 of 2005 before this Court but this Court directed him to claim discharge before the trial Court and meanwhile stayed the coercive process against him vide order dated 12.7.2005. 7. Revisionist claimed discharge before the trial Court by moving an application for the same being paper No. 20 kha, which prayer of his was partly accepted by the trial Court who discharged him for offences under Sections 211/218, IPC but rejected his prayer for discharge under Section 13 (1) P.C. Act vide his impugned order dated 20.1.2007. Hence this revision challenging refusal to discharge. 8. I have heard Sri G.S. Hajela as well as Sri I.K. Chaturvedi learned Counsel for the revisionist and Miss Usha Kiran, learned A.G.A. in opposition and I have perused the case diary of the case. 9. In this case a counter-affidavit has been filed by Ramakant Yadav, Inspector C.B.C.I.D., Gorakhpur Sector, Gorakhpur to which a rejoinder affidavit has been filed by the revisionist Kailash Nath Tripathi. Both the aforesaid affidavits are taken on record. 10. Sri G.S. Hajela, learned Counsel for the revisionist contended that taking the prosecution case to be true without any addition or substraction and the material contained in the case diary no offence at all of any kind is disclosed against the revisionist. He submitted that the revisionist only challaned the truck in question under Sections 177, 194, 113 of the Motor Vehicles Act. He further submitted that the said challan was sent to the Court and the matter is still pending before the competent Court for decision as to whether the challan is right or wrong, legal or illegal. He further contended that since the challani report under the aforesaid sections has already been filed before the Court, which is still under adjudication before the competent Court therefore, no offence at all is made out against the revisionist as it cannot be said that the challani report prepared by the revisionist was illegal or was malafidy. He further submitted that the Special Judge (Anti Corruption) was also in the knowledge of the said fact that the challani report under the Motor Vehicles Act has already been submitted to the competent Court and the matter is pending adjudication and therefore, he has mentioned in the impugned order that no offence under Sections 211 and 218, I.P.C. is made out against the revisionist. He further contended that taking the prosecution case to be correct, the act of the applicant does not fall in any of the categories mentioned under Section 13 of the Prevention of Corruption Act and therefore, the trial Judge wrongly held that offence under Section 13 of the Prevention of Corruption Act is made out against the revisionist. He therefore, submitted that since no offence at all is made out therefore, the revisionist be discharged. He submitted that provisions of Prevention of Corruption Act, 1988 is not at all attracted on the facts of the present case and therefore, Special Judge (Anti-Corruption) committed a mistake in not discharging the revisionist. He also submitted that from the counter-affidavit it is clear that the prosecution has got no evidence against the revisionist even prima facie to establish the offence under Section 13 of the Prevention of Corruption Act. He contended that in the counter-affidavit it is admitted that customs officers were present at the police station Kotwali and therefore it is absurd to cogitate that the revisionist will ask for illegal gratification or indulge into illegal means in the presence of officers of custom department. He also contended that the truck was always present in front of custom officers and therefore it was not tampered with. He also contended that only because the truck was not challaned under the NDPS Act is no ground to presume that the revisionist indulged into malpractice and offence under Prevention of Corruption Act is made out against him. He contended that it was not known to the revisionist that Ganja was loaded in the truck as the discovery of Ganja was made subsequently by the custom officers at their office and hence revisionist never knew the fact of ganja being present in the truck. He further submitted that whatever the revisionist did was on the instructions of the higher officer and hence in any view of the matter no offence is made out against the revisionist. He therefore contended that the applicant should be discharged and this revision be allowed. He also submitted that the truck in question was released to the custom officers who checked it at their office and found Ganja to loaded in it. He therefore contended that the applicant should be discharged and this revision be allowed. He also submitted that the truck in question was released to the custom officers who checked it at their office and found Ganja to loaded in it. He drawing the curtain of his argument contended that in fact the two departments of the Government fought with each other because of their vanity and the C.B.C.I.D. just to save it’s skin from the observations of this Court submitted charge-sheet against the revisionists and no offence under the Prevention of Corruption Act is disclosed against the revisionist who deserves to be discharged. 11. Learned A.G.A. contended that since the truck was intercepted by the Custom authorities who were taking it to their office for being checked when the Circle Officer intercepted the said truck and abused the customs authorities and took it to the police station where he got it challaned under M. V. Act which action itself shows that he was indulging into corrupt practice. She further contended that since the revisionist prepared the challani report and challaned the said truck under the Motor Vehicles Act, therefore, his intention was malicious and consequently he falls within the purview of Section 13 of the Prevention of Corruption Act, 1988 (hereinafter referred to as the Act). She further submitted that it is impossible to get a direct evidence of corruption but from the circumstances it can be deciphered. She concludingly submitted that since the revisionist illegally challaned the said truck under the Motor Vehicles Act, therefore, offence under Section 13 of the Prevention of Corruption Act is made out and the revisionist cannot be discharged. 12. I have considered the submissions raised by both sides. In short the allegations are that truck No. WB-25-2335 was intercepted by the custom department on the information that illegal Ganja was being transported in the said truck. While the custom department was taking the said truck to it’s office for being checked it was stopped by the Circle Officer Chandrama Singh, C.O. City Azamgarh, who took it to the police station and the said truck was challaned and detained under the Motor Vehicles Act showing it to be overloaded. This act of the accused Chandrama Singh was said to be in connivance with the revisionist for the purposes of illegal gains and ulterior motives. This act of the accused Chandrama Singh was said to be in connivance with the revisionist for the purposes of illegal gains and ulterior motives. It is not in dispute that the challan, which was issued by the revisionist was sent to the Court and it is still pending adjudication. There is no finding recorded by the Court of competent jurisdiction that the challan issued by the revisionist was illegal or was not in accordance with law. In this respect the Special Judge (Anti Corruption), Gorakhpur has also observed thus : “Whether the name of the truck driver Kamla Singh was in fact Ramsamujh or whether the illegal detention of the truck driver was the malicious prosecution. It is under the determination and attachment by the Court. Where the challani report under Sections 177, 194, 113, I.P.C. has been filed. So I agree that as far as the offence under Sections 211, 218, I.P.C. is concerned. They are not in fact made out against Kailash Nath Tripathi and other accused till a conclusion of Courts findings.” 13. In such a view once the Special Judge (Anti Corruption) was not able to record a positive finding that the challan issued by the revisionist under the Motor Vehicles Act of the aforesaid truck was illegal how can he prima facie conclude that the said challan was for an illegal motives. If the challan is held to be legal and justified then the revisionist cannot be prosecuted at all for any offence under the Prevention of Corruption Act. Nobody can be prosecuted for discharging his legal duty under the statutory provision and no person can be charged with an offence of corruption for performing the statutory legal duty. In the present case the prosecution case is based upon illegal challan issued by the revisionist as according to them the said challan was issued for an ulterior motive which makes their act covered under the Prevention of Corruption Act but the facts remains is that the challan is still subjoined. No Court has recorded a finding that the challan issued by the revisionist was not in accordance with law or was contrary to the provisions under the Motor Vehicles Act. The said fact is still to be determined. In such a view the basic fundamental for making out an offence under the Prevention of Corruption Act against the revisionist is missing. The said fact is still to be determined. In such a view the basic fundamental for making out an offence under the Prevention of Corruption Act against the revisionist is missing. If the challan is held to be legal by a Court of competent jurisdiction no offence at all can be said to be made out against the revisionist. 14. Now to examine the observation by the Special Judge Anti Corruption Section 13 of the Prevention of Corruption Act is quoted below : "13. If the challan is held to be legal by a Court of competent jurisdiction no offence at all can be said to be made out against the revisionist. 14. Now to examine the observation by the Special Judge Anti Corruption Section 13 of the Prevention of Corruption Act is quoted below : "13. Criminal Misconduct by a Public Servant.—(1) A public servant is said to commit the offence of criminal misconduct : (a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than remuneration as a motive or reward, such as, is mentioned in Sec. 7; or (b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned : or (c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as public servant or allows any other person so to do; or (d) if he- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage: or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage : or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest: or (e) If he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Explanation.—For the purposes of this section, “known sources of income” means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant. (2) Any public servant who commits criminal misconduct shall be publishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine." 15. From the perusal of the aforesaid section it is perceptibly clear that issuing challan, which is still not declared to be illegal is not covered under any of the heads within sub-clauses (a), (b), (c) or (d) of Section 13 of Prevention of Corruption Act. For the applicability of sub-clause (a) there is absolutely no material on record worth in name to indicate that any illegal gratification was desired by the revisionist. What has been alleged by the prosecution is a hypothetical supposition that challan was issued for such a purpose. There is absolutely nothing on record to substantiate the said hypothesis. Merely because the Circle Officer and not the present revisionist brought the truck to the police’ station even though it was being taken for being searched by the custom department is wholly insufficient to show that any illegal gratification was being demanded or that it was desired by the revisionist. More over by not searching the truck under NDPS Act is also wholly insufficient to show offence under the Prevention of Corruption Act more so when the Custom officers were present to conduct the search for the same. There is no allegation against the revisionist in that respect whatsoever nor any witness has said so in his statement under Section 161, Cr.P.C. Prosecution allegations in this respect is based purely on conjunctures and not even on suspicion. It is to be remanded that even on suspicion a charge can be framed against the accused person but the suspicion should be based on some tangible, cogent and relevant material. In the present case there is nothing on record even to raise a suspicion that the revisionist issued challan because he desired illegal gratification. As mentioned above the said challan is subjudice before the competent Court of law. In the present case there is nothing on record even to raise a suspicion that the revisionist issued challan because he desired illegal gratification. As mentioned above the said challan is subjudice before the competent Court of law. Further so far as sub-clauses (b), (c) and (d) are concerned they are not applicable on the facts of the present case at all. In such a view once there is no evidence worth in name even on suspicion against the revisionist fulfilling the ingredients of Section 13(1) of the Prevention of Corruption Act no charge can be framed against the revisionist. 16. I now dwell upon the reasons given by the Special Judge (Anti Corruption). The Special Judge (Anti Corruption) has observed as follows : “As far as Section 13(1) of Prevention of Corruption Act which is basically mentioned for the offence being committed by public servant if he dishonestly or fraudulently with an intention by corrupt or illegal means obtains for himself or for any other person any valuable thing or pecuniary advantage or any by abusing as a public servant favours a person illegally with corrupt means then he is liable for an offence under Section 13(1) of Prevention of Corruption Act. So I am of the opinion that no doubt that charges against the applicant for preparation of the false record may not made and at this stage before the finally adjudication by a competent authority trying the case in M. V. Act but as far as the charge under Section 120-B and Section 13(1) read with 13(2) of the Prevention of Corruption Act is made out against the accused Kailash Nath Tripathi accused for framing the charge accordingly.” 17. From the above observation, it cannot be said at all that there was prima facie evidence against the revisionist for framing charge under Section 13 of the Prevention of Corruption Act. The offence Prevention of Corruption Act was implanted on the revisionist on the basis of challan under the Motor Vehicles Act. Since the said challan is not illegal how there can be a charge under Section 13(1) and 13(2) Prevention of Corruption Act. The whole reasoning given by the Special Judge (Anti Corruption), Gorakhpur in the impugned order, therefore, is illegal and purely conjectural. Special Judge (Anti Corruption) Gorakhpur himself has observed that no false record was made by the revisionist. Since the said challan is not illegal how there can be a charge under Section 13(1) and 13(2) Prevention of Corruption Act. The whole reasoning given by the Special Judge (Anti Corruption), Gorakhpur in the impugned order, therefore, is illegal and purely conjectural. Special Judge (Anti Corruption) Gorakhpur himself has observed that no false record was made by the revisionist. If no record was manufactured and the challan is still subjudice before the Court of law how the offence under Section 13(1) and 13(2) of the Prevention of Corruption Act is made out against the revisionist? 18. In view of the discussions made above, I am of the opinion that on the facts of the present case so far as the revisionist is concerned no offence at all is made out against him even on suspicion. His act of issuing challan is till to be declared to be illegal or malafidy. Since that has not been done as yet no offence at all can be said to have been committed by the revisionist. 19. Further I am not satisfied that in the presence of custom officers the revisionist will indulge into sculduddery of making a demand of illegal gratification or making maneavours for it. 20. In view of the discussions made above prosecution has not been able to bring out any offence against the revisionist under the P.C. Act. With the aforesaid observations, I am of the opinion that no offence has been committed by the revisionist and the Special Judge (Anti Corruption), Gorakhpur wrongly rejected the prayer of the revisionist from being discharged. In such a view this revision is allowed. The impugned order dated 20.1.2007, passed by Special Judge (Anti Corruption), Gorakhpur, in Special Trial No. 11 of 2004, State v. Chandrama Singh and others, under Section 120-B, I.P.C. and Section 13(1) and 13(2) of Prevention of Corruption Act is hereby quashed. Revisionist is discharged of the offence under Section 13 (1) and 13(2) of the Prevention of Corruption Act and 120-B, IPC. ————