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2013 DIGILAW 364 (AP)

Vompolu Subhadra v. State of Andhra Pradesh

2013-04-30

R.KANTHA RAO

body2013
ORDER Heard the learned Counsel appearing for the petitioner and the learned Standing Counsel for the ACB Cases. 2. This criminal petition is filed under Section 482 of the Code of Criminal Procedure to quash the entire proceedings in CC No. 10 of 2012 on the file of the III Additional District and Sessions Judge-cum-Special Judge for ACB Cases, Visakhapatnam. 3. The brief allegations levelled in the charge-sheet, which is sought to be quashed, may be stated as follows: 4. The de facto complainant was a diet contractor of Mother and Child Hospital. (Ghosha Hospital), Vizianagaram. He submitted certain diet bills for the months of April, to October, 2010 for an amount of Rs. 1,76,926/, the cheque was prepared for the said amount and the same was forwarded to the petitioner, who was working as Deputy Civil Surgeon and In-charge resident Medical Officer for her signature. It is alleged that on 4.11.2010 the petitioner demanded an amount of Rs. 10,000/- as bribe for signing the cheque. The de facto complainant allegedly agreed to pay an amount of Rs. 8,000/- as bribe and the petitioner did not sign the daily diet book from 25.10.2010 as the demanded bribe amount was not paid. The de facto complainant, who was unwilling to pay the bribe amount approached the DSP, ACB and lodged a report with him. On the strength of his report, a case in Crime No. 16/RCT-ACB/VZM/2010 of ACB was registered under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988. A trap was laid in the course of investigation. According to the prosecution, in the course of the said trap, the petitioner received an amount of Rs. 8,000/- from the de facto complainant, counted the amount with her right hand, called the duty doctors, LWs. 5 to 7 and distributed the amount of Rs. 2,500/-, 1,000/- and 1,500/- respectively to them and retained the remaining amount of Rs. 3,000/- with her. Thereafter, on a pre-arranged signal relayed by the de facto complainant, the raiding party rushed in and caught hold of the petitioner, the cash of Rs. 3,000/- was recovered from the petitioner and chemical test conducted on her both hands yielded positive result. 5. 3,000/- with her. Thereafter, on a pre-arranged signal relayed by the de facto complainant, the raiding party rushed in and caught hold of the petitioner, the cash of Rs. 3,000/- was recovered from the petitioner and chemical test conducted on her both hands yielded positive result. 5. It is however, the contention of the petitioner that there was a practice in the said hospital since long time that in the event of the doctors not accepting the diet provided by the diet contractor in night duties they have been receiving the cost of the diet paid by the diet contractor and accordingly she received the amount from the complainant towards dietary charges and she did not demand any bribe. She wants to substantiate her contention on the ground that she openly received the amount just like other doctors and the said amount was not taken as illegal gratification from the complainant and therefore, continuance of the criminal proceedings in CC No. 10 of 2012 against her is nothing but abuse of process of law. 6. Sri T. Niranjan Reddy, learned Counsel appearing for the petitioner invited my attention to the statement of the Medical Superintendent recorded by the police and that of the other doctors recorded under Section 161 Cr.P.C. by the Investigating Officer which shows that there was a practice prevailing in the hospital of receiving the cost of the diet in cases where the doctors did not accept the diet provided by the diet contractors while they were on night duty. The statements of the witnesses were also to the effect that the amount was paid only towards diet charges paid openly in the presence of all the doctors and the said amount was not taken as illegal gratification by the petitioner. 7. The learned Counsel also drew my attention to certain correspondence in the course of the disciplinary proceedings against the petitioner, which also shows that the said practice of receiving the amount towards diet charges from the diet contractor was prevailing in the said hospital and also for that matter in the entire State. 8. But, the specific case of the prosecution is that PW3 demanded and accepted an amount of Rs. 8,000/- from the de facto complainant as illegal gratification to sign daily diet book and also the cheque. 9. 8. But, the specific case of the prosecution is that PW3 demanded and accepted an amount of Rs. 8,000/- from the de facto complainant as illegal gratification to sign daily diet book and also the cheque. 9. In support of his contention, the learned Counsel appearing for the petitioner relied on Rajiv Thapar and others v. Madanlal Kapoor, (2013) 3 SCC 330 , wherein the Apex Court held as follows: "To invoke its inherent jurisdiction to quash proceedings on the basis of defence material High Court has to be fully satisfied that material produced or relied on by accused (a) leads to conclusion that his/her defence is based on sound" reasonable, and indubitable facts; (b) rules out and displaces assertions contained in charges levelled against accused without necessity of recording any evidence; (c) should not have been refuted, or alternatively, cannot be justifiable refuted, being of sterling and impeccable quality i.e., a reasonable man should be persuaded to dismiss and condemn actual basis of accusations as false; (d) whether proceedings with the trial would result in an abuse of process of the Court, and would not serve the ends of justice." 10. The contention of the learned Counsel for the petitioner seems to be that admittedly the petitioner received the amount of Rs. 3,000/- from the complainant, but it was towards her diet charges and the doctors working in the hospital including the Medical Superintendent, who were examined by the Investigating Officer under Section 161 Cr.P.C. stated in their statements that the amount was received by the petitioner openly towards diet charges just like the other doctors and therefore, there is no possibility of the petitioner being convicted for the offences under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 as the said amount was not received as illegal gratification but only as diet charges. The continuance of the proceedings according to the learned Counsel is nothing but abuse of process of law and therefore, he seeks to quash the charge-sheet. 11. The continuance of the proceedings according to the learned Counsel is nothing but abuse of process of law and therefore, he seeks to quash the charge-sheet. 11. On the other hand, Sri Ghani A. Moosa, learned Standing Counsel appearing for the ACB Cases would contend that the specific case of the prosecution is that the petitioner demanded amount from the de facto complainant as illegal gratification for signing the cheque and also the daily diet book, the question as to for what purpose she demanded the amount has only to be decided in the course of trial after appreciating the entire facts and circumstances of the case and basing on the statement of some of the witnesses recorded by the police in the investigation and also the correspondence made in the course of the disciplinary proceedings proposed to be initiated against the petitioner cannot be the guiding factors to quash the criminal proceedings against the petitioner. 12. In support of his contention, he relied on Padal Venkata Rama Reddy @ Ramu v. Kovvuri Satyanarayana Reddy and others, 2011 (2) ALD (Cri.) 948 (SC), wherein the Apex Court held as follows: "From conjoint reading of entire compliant, materials collected and stated in form of charge-sheet, statement of witnesses, it cannot be presumed that there is no legal and acceptable evidence in support of prosecution, and therefore, the High Court exceeded its power in quashing criminal proceedings on erroneous assumption that ingredients of offence alleged by prosecution not made out or that on materials available prosecution cannot end in conviction." 13. According to the Apex Court there is no scope for enquiry into reliability of evidence, sustainability of accusation, or whether case would end in conviction or acquittal-while acting under Section 482 Cr.P.C. That is the function of the Trial Judge. It is material concluded during investigation and evidence let in Court which would decide the fate of accused persons. In a proceedings instituted on a complaint exercise of inherent powers to quash proceedings is called for only in a case in which complaint does not disclose any offence or is frivolous. 14. It is material concluded during investigation and evidence let in Court which would decide the fate of accused persons. In a proceedings instituted on a complaint exercise of inherent powers to quash proceedings is called for only in a case in which complaint does not disclose any offence or is frivolous. 14. From the ratio laid down by the Supreme Court in the judgments relied on by the petitioner as well as the learned Standing Counsel for ACB, it has to be understood that though the High Court has wide powers to quash the FIR/charge-sheet in exercise of jurisdiction under Section 482 of the Code of Criminal Procedure, the powers have to be used sparingly and in exceptional cases. The High Court is not precluded from scrutinizing the allegations levelled in the charge-sheet, the High Court would quash the FIR/charge-sheet only when it reaches a positive and definite conclusion that they do not disclose any offence or seem to be prima facie or frivolous. In the instant case, the specific case of the prosecution is that the petitioner demanded Rs. 8,000/- from the de facto complainant and accepted the same as illegal gratification for passing the diet bills of an amount of Rs. 1,76,926/-. The petitioner does not dispute acceptance of the amount from the de facto complainant what all she states is that she accepted the amount as diet charges just like the other doctors and it is not towards illegal gratification. Her colleague doctors including the Medical Superintendent of the Hospital, of course, seem to have supported her version as is evident from the statements recorded by the police under Section 161 Cr.P.C. If really any practice of receiving cash in lieu of diet charges is prevailing it has to be decided by the trial Court only on appreciating the entire evidence. The prosecution case is that the amount was received by the petitioner only as illegal gratification. As held by the Supreme Court in the judgment in Padal Venkata Rama Reddy @ Ramu's case (supra), this Court while acting under Section 482 Cr.P.C. is not supposed to examine the issue as to whether the case would ultimately end in acquittal or conviction. The allegations levelled against the petitioner do not seem to be totally false or frivolous. As held by the Supreme Court in the judgment in Padal Venkata Rama Reddy @ Ramu's case (supra), this Court while acting under Section 482 Cr.P.C. is not supposed to examine the issue as to whether the case would ultimately end in acquittal or conviction. The allegations levelled against the petitioner do not seem to be totally false or frivolous. The crucial question as to under what circumstances and for which purpose the petitioner received the amount from the de facto complainant can only be decided by the trial Court after recording the entire evidence and examining the said evidence in the facts and circumstances of the case. Moreover, in Gian Singh v. State of Punjab and another, 2012 (9) Scale, the Supreme Court has laid down that normally in exercise of powers under Section 482 Cr.P.C, the High Court shall not quash the first information report/charge-sheet relating to the offences under the Prevention of Corruption Act as in such cases larger public interest is involved. Therefore, in the instant case also I am not inclined to quash the charge-sheet/FIR by mere examining the merit of the defence. Since the police conducted thorough investigation and filed charge-sheet, the prime question as to for what purpose the amount was received by the petitioner has to be decided by the trial Court only after considering the entire evidence before it. Therefore, I am of the considered view that the trial of the case has to be proceeded with. However, it is made clear that the observations made by this Court while disposing of the criminal petition shall not have any bearing on the trial Court while disposing of the case and the trial Court shall arrive at appropriate decision independently without being influenced by any of the observations made herein. 15. For the foregoing reasons, the criminal petition is dismissed.