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2013 DIGILAW 444 (ORI)

Hrudananda Sahu v. State of Orissa

2013-10-09

C.R.DASH

body2013
JUDGMENT : C.R. DASH, J.- In this application under Section 482, Cr.P.C., the Petitioner has invoked the inherent jurisdiction of this Court for quashing of the entire proceeding initiated against him in the Court of Learned Special Judge (Vigilance), Keonjhar in T.R. Case No.84 of 2011 for alleged offence under Section 13(2) read with Section 13(1)(d) & Section 7 of the Prevention of Corruption Act, 1988. 2. One Laxman Kumar Mahakud is the informant. AC.2.34 decs. of land in mouza Jamukundi under Barbil Tahsil vide Plot Nos.600, 601 & 602 appertaining to Khata No.2 stood recorded in the name of one Abhi Mahakud, who happens to be the elder brother of the father of the informant. The informant applied for demarcation of the aforesaid land before the Tahsildar, Barbil. Accordingly the aforesaid lands were demarcated by the present Petitioner & his peon named Ram Chandra Jena (co-accused) on 20.01.2002. On that day, i.e. 20.01.2002, the informant sought for supply of the trace map & identification copy from the Petitioner, who allegedly demanded Rs.300/- (rupees three hundred) as bribe for supply of the said documents. The informant expressed his inability to pay that much of amount, but the Petitioner asked him (informant) to come to his (Petitioner's) office on 02.02.2002 with the amount. The informant with much difficulty arranged Rs.300/- & filed F.I.R. on 02.02.2002 in Balasore Vigilance Police Station, vide Balasore Vigilance P.S. Case No.5 of 2002, alleging therein about illegal demand raised by the Petitioner for supply of copies. After registration of the F.I.R., a trap was laid during which the tainted money was received by the peon Ram Chandra Jena & the same was recovered from him during the trap by vigilance officials. Aforesaid Ram Chandra Jena (co-accused) on being challenged, gave out that he received the tainted money of Rs.300/- (three hundred) from the informant as per the instruction of the present Petitioner. The trap report, detection report, etc. were prepared witnesses were examined & after completion of the investigation, the Vigilance Police submitted Final Form observing therein as follows :- "Since the amount involved is scanty & considering the process of detection; the case is referred to accused persons' authority for regular departmental action for initiating departmental proceeding for award of major penalty which may meet the ends of justice." 3. After submission of the Final Report, Learned Special Judge (Vigilance) issued notice to the complainant/informant for filing his objections, if any. In pursuance of the aforesaid notice, the complainant/informant filed a memo in the aforesaid Court mentioning therein that he had no objection if the Final Form is accepted. However, the Learned Special Judge (Vigilance), Balasore (as the case was pending there then) by his Order Dated 27.04.2011 chose not to accept the Final Report after perusal of the records of the case by observing thus : "law is well settled that pendency of a departmental proceeding or where a departmental proceeding is contemplated, in either of the case, the criminal case shall run for penal action against the persons concerned, who has committed any offence under any penal law. In this circumstance this Court not in a position to conceive as to how the I.O. has submitted final form on flimsy ground. Hence let an explanation be called for from the I.O. namely A.K. Dash as to how he had submitted the final form against the accused persons & to justify his stand. Let copy of this order also be sent to the S.P. Vigilance, Balasore Division, Balasore as well as the Director General of Vigilance for their information & necessary action. Put up this case record on 20.05.2011 awaiting the explanation of the I.O. concerned & for further orders on the matter of sanction & cognizance." Pursuant to the aforesaid order, the S.P. (Vigilance), Balasore, vide his forwarding letter dated 19.05.2011, submitted the report before the Collector, Keonjhar for according sanction. By Order Dated 22.06.2011 Collector & District Magistrate, Keonjhar accorded sanction for prosecution so far as the Petitioner is concerned & vide Order Dated 07.06.2011, Tahasildar, Barbil accorded sanction so far as the prosecution of co-accused Ram Chandra Jena (Peon) is concerned. After receipt of the sanction order against both the accused persons Learned Special Judge (Vigilance) vide Order Dated 05.09.2011 took cognizance of the offence & issued process. Now, in this petition under Section 482, Cr.P.C., the Petitioner has impugned the entire proceeding. 4. From the materials on record, it is found that the Petitioner on 20.01.2002 demarcated the land applied for by the informant & on that day he is alleged to have demanded gratification of Rs.300/- when the informant sought for supply of the copy of the track Map & the identification copy. 4. From the materials on record, it is found that the Petitioner on 20.01.2002 demarcated the land applied for by the informant & on that day he is alleged to have demanded gratification of Rs.300/- when the informant sought for supply of the copy of the track Map & the identification copy. The Informant expressed his inability to the amount demanded by the Petitioner. The Petitioner asked the informant to meet him in his office on 02.02.2002 with the demanded amount to take the Trace Map & Identification copy. On the basis of the F.I.R. lodged on 02.02.2002, the trap was laid & the informant along with the witnesses & Vigilance Officials proceeded to the office of the Petitioner. The informant saw co-accused Ram Chandra Jena coming out of the office. He (informant) asked co-accused Ram Chandra Jena regarding whereabouts of the Petitioner. Co- accused Ram Chandra Jena said that the Petitioner is not there in the office & he had asked him to receive Rs.300 brought by him (informant). The informant thereafter paid Rs.300 to co-accused Ram Chandra Jena & he was trapped while taking the aforesaid tainted money. 5. Mr. Pani, Learned Additional Standing Counsel appearing for the Vigilance Department strenuously submits that the Petitioner having demanded illegal gratification from the informant, such an act itself is culpable under Section 7 of the P.C. Act, 1988. He relies on the case of Bhaskar vrs. State of Maharashtra & others, II (2008) CCR 197 to substantiate his contention. Learned Counsel for the Petitioner on the other hand submits that the informant being an accomplice to the transaction, his evidence is not sufficient without any corroboration in material particular & the chance of conviction in the case is very bleak. It is further submitted by Learned Counsel for the Petitioner that, in the present case the materials on record are not sufficient to prove the essential ingredients of the offence, i.e. the factum of demand, acceptance & recovery. 6. In an offence under Section 7 of the Prevention of Corruption Act, 1988, the points requiring proof are- (i) that, the accused at the time of the offence was, or expected to be, a public servant; . (ii) that, he accepted or retained or agreed to accept, or attempted to obtain from some person a gratification; (iii) that, such gratification was not a legal remuneration due to him; . (ii) that, he accepted or retained or agreed to accept, or attempted to obtain from some person a gratification; (iii) that, such gratification was not a legal remuneration due to him; . (iv) that, he accepted such gratification as a motive or reward, proof of which is essential for (a) doing or forbearing to do an official act, or (b) showing or forbearing to show favour or disfavour to Someone in exercise of his official functions, or (c) rendering or attempting to render any service, or disservice to someone, with the legislative or executive government, or with any public servant. 7. From the aforesaid ingredients, it is clear that acceptance or retention of the bribe money, agreement to accept the bribe money, or attempt to obtain bribe money are the essential prerequisites or the essence of the offence under Section 7 of the P.C. Act, 1988. The case of Bhaskar (supra), on which Mr. Pani, Learned Addl. Standing Counsel (Vigilance Department) placed reliance, is a case where there was agreement by the accused to accept the bribe. In the present case, however, the fact in Bhaskar's case is distinguishable. The Petitioner in the present case on 20.01.2002 demanded bribe from the informant. The informant expressed his inability to pay the amount. The Petitioner then asked the informant to come to his office with the bribe money of Rs.300/- on 02.02.2002. There has been no agreement at any point of time between the Petitioner & the informant for acceptance of the bribe. Where the statute defines the offence of bribery by an officer to be the act of agreeing to receive a bribe, a mere offer by an official to accept the bribe from another, unaccompanied by the agreement of the person solicited is not criminal. In the present case, if the entire allegation is taken into consideration, it is seen that there has been demand or offer by the Petitioner to receive Rs.300/- towards bribe, but there has been no agreement by the informant to pay that amount, as he has expressed his inability to pay that much of amount. Therefore, the case of Bhaskar (as relied on supra by Mr. Pani, Learned Addl. Standing Counsel, Vigilance Department) is not applicable to the fact of the case. 8. Further it is seen that, Section 7 speaks of the "attempt" to obtain a bribe as being in itself an offence. Therefore, the case of Bhaskar (as relied on supra by Mr. Pani, Learned Addl. Standing Counsel, Vigilance Department) is not applicable to the fact of the case. 8. Further it is seen that, Section 7 speaks of the "attempt" to obtain a bribe as being in itself an offence. Mere demand or solicitation, therefore, by a public servant amounts to commission of an offence under Section 7 of the P.C. Act. The word "attempt" is to imply no more than a mere solicitation, which, again may be made as effectually in implicit or in explicit terms. Viewed from this perspective, mere demand of Rs.300/- by the Petitioner from the informant constitutes the offence under Section 7 of the P.C. Act. 9. Hon'ble Supreme Court, in the case of Panalal Damodar Rathi vrs. State of Maharashtra, A.I.R. 1979 SC 1191, has held thus :- "There could be no doubt that the evidence of the complainant should be corroborated in material particulars. After introduction of Section 165-A of the I.P.C. making the person, who offers bribe, guilty of abetment of bribery the complainant cannot be placed on any better footing than that of an accomplice & corroboration in material particulars connecting the accused with the crime has to be insisted upon." Section 12 of the P.C. Act, 1988 is analogous to Section 165-A, I. P. C. Abetment of offence defined in Section 7 or Section 11 of the P.C. Act, 1988 is a distinct offence under Section 12 thereof & a bribe giver in umpteen number of cases has been held to be an abettor. In the present case, so far as demand or solicitation of bribe of Rs.300/- by the Petitioner is concerned, there is admittedly no corroborative materials except the statement of the informant. Informant is the sole witness so far as such demand or solicitation is concerned. Admittedly, the bribe money has not been received by the Petitioner, but the same has been received by the second accused Ram Chandra Jena on the ground that the Petitioner had told him to receive the amount. In view of such fact, the trap in the case so far as the present Petitioner is concerned has failed. Admittedly, the bribe money has not been received by the Petitioner, but the same has been received by the second accused Ram Chandra Jena on the ground that the Petitioner had told him to receive the amount. In view of such fact, the trap in the case so far as the present Petitioner is concerned has failed. There being no corroborative materials on record except the statement of the informant on the point of demand/solicitation of bribe of Rs.300/- by the Petitioner on 20.01.2002, the chance of conviction of the Petitioner in the event of a trial is very very bleak. 10. Taking into consideration all the aforesaid facts & especially the defects in the process of detection, the I.O. in his wisdom had rightly submitted the Final Form, to the acceptance of which the informant had also no objection. Learned Special Judge (Vigilance) however proceeded on a different footing & held that initiation or pendency of a Departmental Proceeding is not a bar for trial of the Petitioner before the criminal Court. Learned Special Judge (Vigilance), as found from his Order Dated 27.04.2011, has not at all taken into consideration the defects in the process of the detection & other inherent improbabilities in the prosecution case which the I.O. by virtue of his experience had the wisdom to sense. 11. In the premises as aforesaid, the impugned proceeding is quashed & the CRLMC is accordingly allowed. Application allowed.