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2011 DIGILAW 1661 (RAJ)

Praveen Chand Mandawaria v. State of Rajasthan

2011-08-09

SANDEEP MEHTA

body2011
Hon'ble SANDEEP MEHTA, J.—This petition has been filed on behalf of accused petitioner against whom a FIR was filed under the provisions of the Prevention of Corruption Act at Anti Corruption Bureau, Jaipur. By way of this petition under Section 482 Cr.P.C., the petitioner has challenged the registration of the FIR against him. The petition was filed on 7.5.2010, at which point of time, the FIR as against the petitioner was still pending investigation but it is the admitted case now on the record that the charge-sheet has been filed subsequent to the investigation on 14.5.2010 in the Court of learned Special Judge, Anti Corruption Cases, Jaipur. 2. The petitioner has challenged the FIR filed against him on the following grounds:- (a) The FIR does not disclose any offence. (b) The petitioner cannot be fixed with the liability under the Prevention of Corruption Act because neither the petitioner made any demand of bride from the complainant nor did he accept any bribe. (c) The petitioner was not in a position to pass the bills and release the payments of the complainant. (d) The criminal proceedings are attributed with malafide. (e) It has also been submitted that registration of the FIR is illegal because the FIR has been registered by the S.P. 1, Anti Corruption Bureau, whereas the power to register the FIR was with the DG, Anti Corruption Bureau. 3. The matter was posted before this Court on 19.7.2011 and a question was put to the counsel for the petitioner about the maintainability of the petition because of the charge-sheet being filed subsequent to the filing of the petition. 4. Learned counsel for the petitioner, however, submitted that the petition was maintainable and has placed reliance on certain judgments, particularly the judgment of the Hon'ble Delhi High Court in the case of Jitendra Mohan Gupta vs. State 1992 Cr.L.J. 4016 and the judgment of the Hon'ble Punjab & Haryana High Court in Om Prakash Babbar vs. Haryana State Electricity Board. Counsel for the petitioner has also relied on the case of Abhinandan Jha & Ors. vs. Dinesh Mishra ( AIR 1968 SC 117 ) for the purposes of canvassing his argument regarding the FIR being illegally registered by the Additional S.P. 5. Per contra, Shri NA Naqvi, learned Addl. Counsel for the petitioner has also relied on the case of Abhinandan Jha & Ors. vs. Dinesh Mishra ( AIR 1968 SC 117 ) for the purposes of canvassing his argument regarding the FIR being illegally registered by the Additional S.P. 5. Per contra, Shri NA Naqvi, learned Addl. Advocate General, on behalf of Anti Corruption Bureau, has submitted that the petition filed by the petitioner is misconceived It has been submitted that the Additional S.P. was very much entitled and empowered to register the FIR in view of the notification of the State Government. It has further that the aforesaid notification of the State Government was relied upon and approved by this Court in two cases being SB Criminal Misc. Petition No. 112/2000, State of Rajasthan vs. Shiv Bhagwan Saraogi decided on 15.11.2000 and SB Criminal Misc. Petition No. 755/1999, State of Rajasthan vs. Motilal Parasher, decided on 21.9.1999. The aforesaid notification of the State Government has been upheld by this Court in the aforesaid two decisions. It has also been argued that if at all, the petitioner was aggrieved of the notification mentioned above, then he had to challenge the validity/vires by way of filing writ petition under Article 226 of the Constitution of India. 6. As regards the merits of the case, it has been submitted that the allegations made on behalf of the petitioner regarding there being no evidence to connect the petitioner with the alleged crime and there being no evidence as regards the demand of bribe by the petitioner and the acceptance thereof, were not sustainable in view of the fact that both these facts were well disclosed from the FIR as well as the statement of the complainant and other material available on the record. It was also submitted that the petitioner was continuously contacting the complainant even after taking an illegal gratification sum of Rs. 1,000/- from the complainant and after the tainted amount of Rs. 2,000/- was accepted by one Shri RD Gupta, co-accused in the presence of the petitioner. It was also submitted that the petitioner was continuously contacting the complainant even after taking an illegal gratification sum of Rs. 1,000/- from the complainant and after the tainted amount of Rs. 2,000/- was accepted by one Shri RD Gupta, co-accused in the presence of the petitioner. It has further been submitted that there is a presumption, which has to be raised against the petitioner because he was very much responsible for forwarding the file of the complainant for the purposes of passing of his bills and that there is a specific allegation that the petitioner had accepted the illegal gratification in the garb of sweets from the complainant and that a clear case of conspiracy between the petitioner and the co-accused Shri R.D. Gupta in demanding the amount of bribe and the acceptance thereof was found proved in the investigation. It has been submitted that in order to take the bribe, the scooter of Shri RD Gupta was left in the High Court premises and the complainant was asked to come to a particular place where the petitioner and the co-accused RD Gupta came on the scooter of the petitioner and there, the bribe amount was accepted by co-accused RD Gupta within the vision and proximity of the petitioner and, therefore, there was ample material on the record of the case to show that the petitioner was also a conspirator in the acceptance of the bribe. 7. In rejoinder, the counsel for the petitioner has submitted that the judgments of this Court upholding the notification of the State Government, whereby the officers apart from the DG have been empowered to register the FIR, were not conclusive pronouncements as the judgment was passed without giving notice to the opposite party. The petitioner has relied upon the judgments passed by this Court in DB Criminal Jail Appeal No. 32/1980 for the purposes of showing that the FIR in this case was not registered by the competent authority and, therefore, the same should be quashed. 8. I have considered the arguments advanced on behalf of both the parties and have given my thoughtful consideration to the arguments advanced as well as the material available on the record and the pronouncements of various courts on which the counsel for the petitioner has placed reliance. 9. 8. I have considered the arguments advanced on behalf of both the parties and have given my thoughtful consideration to the arguments advanced as well as the material available on the record and the pronouncements of various courts on which the counsel for the petitioner has placed reliance. 9. At the outset, it may be stated that the judgment of the Division Bench, which has been relied upon by the counsel for the petitioner, has no bearing on the case in hand. The Division Bench was not called upon to consider the effects of the notification of the year 1957 because the case, which the Division Bench was dealing, was a case under the Penal Code offences. Thus, the aforesaid judgement is of no help to the petitioner. 10. The argument of the counsel for the petitioner that the judgment of this Court in Shiv Bhagwan's case (supra) and Motilal's case (supra) do not lay down the correct preposition of law because they were passed ex parte is prima facie atrocious. Simply because the petition filed by the State was decided without hearing the other party, that by itself cannot be a ground to doubt the validity of the judgment passed by this Court. 11. As has already been discussed above, the notification of the year 1957 of the State Government, as approved by this Court in the judgment of Shiv Bhagwan's and Motilal's case, clearly empowers the officers referred to in the notification to register a FIR. 12. I have also given my thoughtful consideration to the notification of 1957 and I am of the opinion that the said notification was issued under the powers conferred on the State Government vide Section 4 Cr.P.C. 1898 and that there cannot be any question about validity of the said circular. If the argument as raised by the petitioner that the Additional S.P. was not competent to register the FIR was to be accepted, then the situation of absolute absurdity would arise. For the purpose of appreciating this argument, the provisions of Cr.P.C. have to be kept in mind. Section 2(o) Cr.P.C. defines the word "Officer-in-Charge of a Police Station," which reads as under:- "2(o). For the purpose of appreciating this argument, the provisions of Cr.P.C. have to be kept in mind. Section 2(o) Cr.P.C. defines the word "Officer-in-Charge of a Police Station," which reads as under:- "2(o). `officer in charge of a police station' includes, when the officer in charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present." Section 36 Cr.P.C. may also be referred, which reads as under:- "36.- Powers of superior officers of police-Police officers superior in rank to an officer in charge of a police station may exercise the same powers, throughout the local area to which they are appointed, as may be exercised by such officer within the limits of his station." The harmonious construction of these two provisions would clearly show that if the officer-in-charge of a police station is absent, then the officer present at the station house, who is next in rank to such officer and is above the rank of a constable or when the State Government so directs any other police officer so present would be entitled to act as an Officer-in-Charge of a police station. It is no doubt that the DG of the Anti Corruption Bureau is the Officer-in-Charge of Police Station, Anti Corruption Burea, Jaipur but a harmonious consideration of the notification of 1957 and the provisions mentioned in Sections 2(o) and 36 Cr.P.C. would lead to a definite conclusion that when the Officer-in-Charge is not present, then in his absence, any other officer lower in rank to the D.G., present in the police station, would be entitled to register a FIR. Registration of the FIR is an act, which is intended to set the criminal law in motion. It has been held by the Hon'ble Apex Court and this court in numerous decisions that the moment the information about the commission of a cognizable offence is given by a person aggrieved to the officer in charge, then the FIR has to be registered immediately so that the investigation may be commenced. It has been held by the Hon'ble Apex Court and this court in numerous decisions that the moment the information about the commission of a cognizable offence is given by a person aggrieved to the officer in charge, then the FIR has to be registered immediately so that the investigation may be commenced. The offences under the Prevention of Corruption Act particularly the offences involving payment of bribe are the cases where the utmost secrecy has be kept and expediency has to be adopted. Therefore, whenever information about the commission of a crime under the Prevention of Corruption Act is given, then it is the bounden duty of the officer, who is competent to register FIR by virtue of the notification of 1957 to immediately act upon the same without any delay. This action is otherwise also necessary by virtue of the provisions of Section 157 Cr.P.C., which prescribes that whenever a FIR is registered regarding the commission of a cognizable offence, then the report shall be forthwith forwarded to the concerned Magistrate. Thus, expediency is the requirement of law and thus, in absence of the DG (the officer in charge of the A.C.B. Police Station), any other officer referred to in the notification of 1957 is very much entitled and duty bound to register the FIR received by him under the provisions of Anti Corruption Act and to forward the same to the concerned Magistrate, who is Special Judge, having jurisdiction, without any delay. The Section 2(o) Cr.P.C. clearly refers to the non-availability of the officer in charge due to other cause. It is quite possible that the DG being the highest officer of the Bureau, may be unavailable in performing other essential official duties keeping him busy and in such an event, if the FIR is registered by an officer lower in rank to the DG, then the said act cannot be said to be an illegality and irregularity and it would be sufficient to initiate prosecution at its inception. In case of acceptance of graft, all the proceedings of the trap, seizure, arrest etc. are done in advance and thereafter, the trap laying officer presents the complete record of the trap proceedings with an unnumbered written FIR at the P.S., ACB, Jaipur. The next step is the clerical job of registering the unnumbered FIR, which is to be done at the P.S., ACB, Jaipur. are done in advance and thereafter, the trap laying officer presents the complete record of the trap proceedings with an unnumbered written FIR at the P.S., ACB, Jaipur. The next step is the clerical job of registering the unnumbered FIR, which is to be done at the P.S., ACB, Jaipur. Thus, it is the act, which is to be exercised by the D.G., ACB, being the officer in charge of the police station. It is relevant to mention here that there is no discretion left with the officer in charge after the submission of the written report. It is not that the registration of the FIR so received, is to be done by some objective assessment or by application of mind. It is simply a clerical job of giving a number to the unnumbered written report, which is to be carried out by the officer in charge of the P.S., ACB. This act can be performed by any officer as per Section 2(o) Cr.P.C. and the circular of 1957. 13. This court is in total agreement with the judgments of this Court referred to above in Shiv Bhagwan's and Motilal's case upholding the circular of 1957 referred to above. 14. Coming to the argument on the merits of the case, I have heard the arguments advanced on behalf of the parties and carefully perused the record of the case including the FIR and charge-sheet filed against the petitioner and the co-accused. The factual matrix is disclosed from careful scrutiny of the material available can be summed up as under:- (a) There is a specific allegation of payment of bribe against the petitioner as per the FIR and as per the statement of the complainant under Section 161 Cr.P.C. (b) There is a specific allegation regarding acceptance of illegal gratification of Rs. 1,000/- (as sweets) by the petitioner from the complainant before the trap was laid. (c) There is an ample material available on the record to show that the accused petitioner was perusing the complainant for the purposes of taking illegal gratification and that the file of the complainant was deliberately being withheld so that the complainant may be forced to give bribe. (c) There is an ample material available on the record to show that the accused petitioner was perusing the complainant for the purposes of taking illegal gratification and that the file of the complainant was deliberately being withheld so that the complainant may be forced to give bribe. (d) There is further material to on the record of the case by way of the mobile call details to show that the petitioner was continuously in touch of the complainant and an assumption can be made that the said act of the petitioner was for the purpose of coercing the complainant to give the bribe being demanded. (e) The tainted currency of Rs. 2000/- was accepted by co-accused RD Gupta in the presence of the accused and within the close proximity of the accused-petitioner. (f) The presence of the petitioner and co-accused RD Gupta on the scooter of the petitioner was by design and not by accident as claimed by the petitioner. 15. Thus, all the ingredients necessary for the commission of the offences under the Prevention of Corruption Act are very much in existence on the record of the case. The charge-sheet has been filed against the petitioner and the case is yet at the stage of framing of charges. For the purposes of taking cognizance and for the purposes of framing charges, only a prima facie case is to be seen and as has already been discussed above, there are prima facie allegations and materials on the record of the case, which show that all the ingredients in relation to the acceptance of demand of bribe have been brought on record of the case by way of investigation and as such, it cannot be said that there do not exist prima facie material on the record which show the prima facie commission of offence under the provisions of the Anti Corruption Act by the petitioner. The Hon'ble Supreme Court in its judgment rendered in the case of Union of India vs. Prafful Kumar Samal, ( AIR 1979 SC 366 ), has observed as under:- "10. The Hon'ble Supreme Court in its judgment rendered in the case of Union of India vs. Prafful Kumar Samal, ( AIR 1979 SC 366 ), has observed as under:- "10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test of determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Court cannot act merely as a Post Office or a mouth piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial." 16. Tested on the touchstone of the aforesaid decision of the Hon'ble Supreme Court, this court is of the firm opinion that there exists ample material on the record of the case, which can safely reach to the conclusion that the petitioner has committed an offence punishable under the provisions of the Prevention of Corruption Act, which has to be tried. Tested on the touchstone of the aforesaid decision of the Hon'ble Supreme Court, this court is of the firm opinion that there exists ample material on the record of the case, which can safely reach to the conclusion that the petitioner has committed an offence punishable under the provisions of the Prevention of Corruption Act, which has to be tried. Under such circumstances, the petitioner has not been able to make out a case wherein the powers of Section 482 Cr.P.C. can be exercised to quash the FIR and charge-sheet filed against the petitioner. 17. In this view of the matter, I find no force in this petition. The same is hereby dismissed.