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2013 DIGILAW 785 (ALL)

DIGVIJAY NATH MISHRA v. STATE OF U. P.

2013-03-12

V.P.PATHAK

body2013
V.P. Pathak, J. Present petition has been filed with the prayer to quash the further proceeding of Special Case No.06/2007, State of U.P. Vs. Digvijay Nath Mishra, pending in the Court of Special Judge ( Prevention of Corruption Act), Varanasi arising from Case Crime No.405 of 2006, under Section 7/13( 2) of the Prevention of Corruption Act,1988( hereinafter referred to as the Act) PS Cantt., District Varanasi as well as the impugned order dated 11.7.2012, whereby the learned Special Judge rejected the discharge application moved by the applicant. The facts as emerge out of this case are that one Paras Nath Chaudhary presented an application by way of complaint in the office of Sri Nandlal Yadav, Dy. Suptd. of Police, Anti Corruption Cell, Varanasi to the effect that Shed No.2 of Harijan Industrial Estate, Ram Nagar, Varanasi was allotted to him on lease by the Harijan Social Welfare Deptt. 35-36 years ago for business purposes but as the document with regard to the said lease was not being available in the Deptt., notices for cancellation of the shed were being sent to him by the Deptt. from time to time and ultimately the allotment of the shed was cancelled in the year 2006. Aggrieved with the said cancellation, the complainant approached the District Social Welfare Officer for restoring his allotment, who in turn told him to contact the Asstt.Manager of the Deptt. Digvijay Nath Mishra ( applicant).Then the complainant approached the applicant, who told him that he would have to spend some money for this work and demanded Rs.5000/- from him for recommending his case for allotment. When the complainant denied to do so, a threatening was made that the shed allotted to him shall be cancelled and action shall be taken for allotting the same to any other person. The complainant anyhow managed to pursue the applicant to settle the deal for Rs.2000/- in lieu of allotment order and agreed to pay the said amount on 14.11.2006 as told by the applicant. The complainant stated that he never wanted to be associated with the applicant in this matter of demand of money as bribe but in order to teach him a lesson by getting him caught red handed and under compulsion, he accepted to give money to the applicant as per his saying. The complainant stated that he never wanted to be associated with the applicant in this matter of demand of money as bribe but in order to teach him a lesson by getting him caught red handed and under compulsion, he accepted to give money to the applicant as per his saying. On being satisfied with the contents of the application and after consultation with the complainant aforesaid, the Dy.Suptd. decided to lay a trap to nab the accused red handed and accordingly instructed the complainant to remain present in his office on 14.11.2006 at 9 AM with the bribe money amounting to Rs.2000/-. The complainant accordingly met Dy.Supt.Anti Corruption Cell, Varanasi in his office with the said bribe money. A team headed by the said Dy.Suptd. was formed for the purpose of trapping the accused and the said Dy.Suptd. asked the Inspector Sri Narendra Pratap Singh to bring two witnesses for the purpose, who took two witnesses namely Sri Shyam Narain Gupta and Sri Radhey Shyam Chaubey,who were also included in the trap party as witnesses. Thereafter the complainant was asked for presentation of notes to be given as bribe to the applicant and the complainant gave 20 notes of Rs.100/-each of different numbers, total Rs.2000/-. Initials along with date 14.11.2006 were made by the said Dy. Suptd. on the said notes and the Constable Raj Kumar Pal was instructed to apply phenolphthalein powder on the notes and hand them over to the complainant Paras Nath Chaudhary, who was instructed to count the notes in his hand and preserve them on a plain folded paper and on being asked by the applicant Digvijya Nath Mishra, was instructed to hand over the same to him after taking out from the paper. The complainant accordingly did so. Thereafter on instructions, Constable Narendra Kumar Singh prepared a solution of Sodium Carbonate and put it into two glasses and washed the fingers of Constable Raj Kumar Pal and the complainant Paras Nath Chaudhary in the solution, which turned into pink colour. Thereafter the solution was sealed. Furd for taking the currency notes of Rs.2000/- having Phenolphthalein powder on it and supurdaginama were prepared. Thereafter on 14.11.2006, the complainant was instructed to go to Vikas Bhawan to ensure the presence of the applicant there, who after returning to the office informed the presence of the applicant. Thereafter the solution was sealed. Furd for taking the currency notes of Rs.2000/- having Phenolphthalein powder on it and supurdaginama were prepared. Thereafter on 14.11.2006, the complainant was instructed to go to Vikas Bhawan to ensure the presence of the applicant there, who after returning to the office informed the presence of the applicant. On getting the said information, the complainant was instructed to go to Vikas Bhawan gate along with unit Constable Raj Kumar Pal and witness Sri Shyam Narain Gupta. Thereafter the said Dy.S.P. along with Inspector Sri Vijay Bahadur Singh, Dy.Inspector Sri Govind Ballabh Joshi, Constables Narendra Kumar Singh, Shesh Nath Singh and the witness Sri Radhey Shyam Chaubey reached near the gate of Vikas Bhawan in a govt. Jeep, where the complainant, constable Sri Raj Kumar Pal and witness Sri Shyam Narain Gupta were already standing. The said Jeep was parked ahead of Vikas Bhawan near the Sulabh Complex. Thereafter the Dy.S.P. and the aforesaid team members went towards the Vikas Bhawan on foot maintaining the secrecy and asked the complainant who was present at the gate to go inside. They were following the complainant and watching the activities secretly. On reaching the ground floor of Vikas Bhawan, near the varandah, a person was seen whom the complainant recognized as the applicant and the said person asked the complainant if he has brought the money. The complainant told that as per his saying he has brought the money and his work may be got done. The said person asked him to go outside. Thereafter the said person along with the complainant came out from the Vikas Bhawan Gate near Goalghar about 60-70 steps ahead and started talking with the complainant and asked for the money agreed upon. On this, the complainant took out the notes from the plain paper from the pocket of his shirt and asked the applicant for counting after handing over the notes to him. After counting the notes, the applicant told that your work has already been done and now the copy of the letter is being handed over to you. The team was secretly watching the activities and on being ensured that the said person is the applicant Digvijay Nath Mishra, Asstt..Manager, Industrial Estate, Harijan and Social Welfare Deptt. Varanasi, who made a deal with the complainant, the Dy.Suptd. The team was secretly watching the activities and on being ensured that the said person is the applicant Digvijay Nath Mishra, Asstt..Manager, Industrial Estate, Harijan and Social Welfare Deptt. Varanasi, who made a deal with the complainant, the Dy.Suptd. after giving his identify, caught the applicant red handed while counting the notes and took possession of the notes on which initials and dates were mentioned by the said Dy.Suptd. earlier. The applicant was told that he had taken bribe of Rs.2000/- from the complainant in lieu of restoring the allotment of the shed no.2 in his favour, which is an offence punishable under Section 7/13( 2) of the Act. After informing about the offence committed by him, the applicant was arrested, who told his name to be Digvijay Nath Mishra. The fingers of the accused applicant and the complainant were got washed separately with the solution of Sodium Carbonate, which turned into Pink colour. Thereafter completing the formalities, the furd was got written by Sri Govind Ballabh Joshi and it was read over to the applicant and other witnesses and thereafter after handing over the copy of Furd to the accused applicant, his signature was taken. On the basis of the said furd, case was got registered against the applicant Digvijay Nath Mishra as Case Crime No. 405/2006, under Section 7/13( 2) of the Act at PS Cantt.,Varanasi. The matter was investigated by the Investigating Officer and after investigation, a charge sheet was submitted under Section 7/13( 2) of the Act against the accused applicant. After receiving the said charge sheet, the learned court below took cognizance of the case. Thereafter the applicant moved an application 23 Kha before the trial court for his discharge on the ground that two letters dated 9.1.2001 and 17.2.2001 were issued to the complainant by the deptt. informing him regarding non utilizing the allotted shed by him and after waiting for three years, on the basis of the report of the applicant regarding misuse of the shed, an information was sent to the Directorate of Industry against the complainant. It was found that one Ashok Kumar was living as a sub-tenant in the shed allotted to the applicant and against him also action was taken to vacate the shed. Ultimately the allotment in favour of the complainant was cancelled on 2.2.2005, which was informed to him on 17.2005. It was found that one Ashok Kumar was living as a sub-tenant in the shed allotted to the applicant and against him also action was taken to vacate the shed. Ultimately the allotment in favour of the complainant was cancelled on 2.2.2005, which was informed to him on 17.2005. On 18.9.2006 the complainant requested for re-allottment of the shed, on which Samaj Kalyan Adhikari, Varanasi strongly recommended his case for reallotment of the shed in his favour, for which the applicant objected to by his note sheet dated 16.10.2006 and due to which there developed inimical terms between the complainant and the applicant which culminated into the present prosecution. The learned below after considering the said discharge application along with other material, came to the conclusion that there are prima facie evidence to frame charges against the applicant, hence the charges punishable under Sections 7 and 13( 1)( d) read with Section 13( 2) of the Act shall be framed and accordantly the application 23Kha moved by the applicant was rejected by the order impugned dated 11.7.2012. Learned counsel for the applicant has firstly contended that the alleged act of the applicant does not come under his official function as he was the Asstt.Manager of the Industrial Estate, Harijan and Social Welfare Deptt, Varanasi who had no power to issue or grant the allotment order of the shed in question in favour of the applicant, hence the main ingredient for the offence under Section 7/13 ( 2) of the Act was missing. It is next contended that the Investigating Officer did not perform his duty of investigation properly as he did not record the statement of any officer or employee of the applicant's office. It is next contended that the alleged amount of Rs.2000/- was the amount of rent of the shed due for 80 months @ Rs.25/- per month, which was not deposited by the complainant Paras Nath Chaudhury since March,2000 and the same has been utilized by him as demanding illegal gratification of Rs.2000/- by the applicant. It is next contended that the complainant was inimical to the applicant as he had already recommended for cancellation of the shed in question due to non depositing the balance rent and not performing the work in the shed in question by the complainant. It is next contended that the complainant was inimical to the applicant as he had already recommended for cancellation of the shed in question due to non depositing the balance rent and not performing the work in the shed in question by the complainant. It is submitted that when a person is in inimical terms with the applicant, why should he pay bribe for getting allotment in his favour. It is also submitted that the alleged allotment order was not recovered from the possession of the applicant while taking his search after his alleged arrest on the spot. It is lastly contended that the entire story of prosecution regarding the trapping and demand of illegal gratification against the applicant are concocted. In support of his contentions, the learned counsel for the applicant has cited the following verdicts of the Hon'ble Apex Court:- 1.Ganga Kumar Srivastava Vs. State of Bihar ( 2005)6 SCC 211.( Paragraph No. 20) 2.A Subair Vs, State of Kerala [2009 ( 67)ACC 892] ( Paragraphs No.8 and 9) 3.State of Gujarat Vs. M.B.Dwivedi AIR 1973, SC 330. 4.Soma Chakrabarty Vs. State through CBI ( 2007)5 SCC 403. 5.C.K.Damodaran Nair Vs. Govt. of India ( 1997) 9 SCC 477 . 6.T.Subramanian Vs. State of Tamil Nadu ( 2006) 1 SCC 401 . 7.Union of India through Inspector CBI Vs.Purnandu Biswas ( 2005) 12 SCC 576 .( Paragraph No. 36) 8.C.M.Girish Babu Vs. CBI ( 2009) 3 SCC 779 ; and 9.State of Maharashtra & others Vs. Som Nath Thapa and others ( 1996) 4 SCC 659 . On the other hand, learned AGA submitted that the applicant was working as Asstt.Manager, Industrial Estate, Harijan and Social Welfare Deptt, Varanasi and his work was to make initial noting for recommending allotment of the shed and thus his function was the part of process of issuing allotment order and hence the act of taking illegal gratification was fully covered under his official function for favouring or disfavouring the applicant about the allotment of shed. It is further contended that at the stage of charge only a prima facie case is to be seen and considered and the learned trial court after finding a prima facie case to be made out against the applicant, rejected the discharge application moved by him and directed to frame charges under Section 7 and 13( 1)( d) read with Section 13( 2) of the Act. It is further submitted that there were sufficient materials about committing the said offence by the applicant as he had asked for money as per deal settled between him and the complainant and was caught red handed while taking illegal gratification of Rs.2000/- from the complainant by the trapping team headed by the Dy.Suptd., Anti Corruption Cell, Varanasi before two independent witnesses. Hence a prima facie case was made out against him. It is lastly contended that the court has limited jurisdiction at the stage of framing charges and the charge shall be framed even on the basis of strong suspicion and at that stage there was no need to discuss the evidence in detail as has been held by the Honb'le Apex Court in Balvinder Singh Vs. Palvinder Singh 2009( 1) JIC ( SC) 73. I have considered the said arguments advanced on behalf of the respective parties and perused the impugned order along with entire material available on record as well as the verdicts of Hon'ble Apex Court as cited above. Adverting to the prosecution version, the complainant Paras Nath Chaudhary along with his application for reallotment of the shed no.2 met the District Social Welfare Officer,Varanasi as notices for cancellation of allotment of his shed were being received by him regularly. The District Social Welfare Officer directed him to contact the Asstt.Manager Digvijay Nath Mashra( applicant) for the said purpose and when he met him, the said Asstt,Manager told that he has to spend some money and ultimately demanded a sum of Rs.5000/- for recommending the allotment of the shed in his favour. Thereafter the deal was settled between the applicant and the complainant for Rs.2000/-. The complainant met the Dy.Suptd., Anti Corruption Cell, Varanasi along with an application to the effect that he never wanted to be associated with the applicant in this matter of demand of money as illegal gratification but under compulsion in order to teach a lesson to the applicant by getting him caught read handed, he accepted to give money to the applicant by going to his office on 14.11.2006 as per the desire of the applicant. Taking cognizance on the application, the said Dy.Suptd. arranged for two witnesses Sri Shyam Narain Gupta and Sri Radhey Shyam Chaubey. Taking cognizance on the application, the said Dy.Suptd. arranged for two witnesses Sri Shyam Narain Gupta and Sri Radhey Shyam Chaubey. Thereafter the complainant was asked for presentation of notes to be given as bribe to the applicant and the complainant gave 20 notes of Rs.100/-each of different numbers, total Rs.2000/-. Initials along with date 14.11.2006 were made by the said Dy. Suptd. on the said notes and the Constable Raj Kumar Pal was instructed to apply phenolphthalein powder on the notes and hand them over to the complainant Paras Nath Chaudhary, who was instructed to count the notes in his hand and preserve them on a plain folded paper and on being asked by the applicant Digvijay Nath Mishra, was instructed to hand over the same to him after taking out from the paper. The complainant accordingly did so. Thereafter on instructions, Constable Narendra Kumar Singh prepared a solution of Sodium Carbonate and put it into two glasses and washed the fingers of Constable Raj Kumar Pal and the complainant Paras Nath Chaudhary with the solution, which turned into pink colour. Thereafter the said Dy.S.P.arranged for trapping the accused applicant, who was finally caught red handed while counting the notes given to him by the complainant as settled between him and the complainant earlier. The fingers of the applicant and that of the complainant were got washed with the solution of Sodium Carbonate, which turned into Pink colour. From the evidence collected during investigation, it is revealed that the applicant was asking for illegal gratification for the recommendation of the allotment of the shed in question in favour of the complainant and to give him allotment order. Admittedly, the applicant was a public servant being Asstt.Manager, Industrial Estate, Harijan & Social Welfare Deptt. Varanasi. The applicant was caught red handed with the bribe money of Rs.2000/- by the trapping team headed by Sri Nand Lal Yadav, Dy.Suptd. Anti Corruption Cell, Varanasi before two independent witnesses referred to above, who have also supported the trapping in their statements during investigation. Learned trial court has found prima facie offence under Sections 7 and 13( 1 )( d) read with Section 13( 2) of the Act to be made out against the applicant and hence directed to fix the matter for framing charges after rejecting the application 23 Kha moved by the applicant for discharge. Learned trial court has found prima facie offence under Sections 7 and 13( 1 )( d) read with Section 13( 2) of the Act to be made out against the applicant and hence directed to fix the matter for framing charges after rejecting the application 23 Kha moved by the applicant for discharge. Now I may consider the verdicts of Hon'ble Supreme Court as cited above by the learned counsel for the applicant one by one. In the first verdict Ganga Kumar Srivastava Vs. State of Bihar ( supra), the Hon'ble Apex Court in paragraph 20 has held as under:- "20 We must not forget that in a trap case the duty of the officer to prove the allegations made against a Government officer for taking bribe is serious, and therefore, the officers functioning in the Vigilance Department must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the court and the court is not left in any doubt whether or not any money was paid to the public servant by way of bribe. It is also the duty of the officers in the Vigilance Department to safeguard for the protection of public servants against whom a trap case may have been laid." In the present matter, the trapping was conducted by the Anti Corruption Cell team headed by the aforesaid Dy.S.P. in presence of two independent public witnesses who have also supported the prosecution version in their statements under Section 161 Cr.P.C. At this stage, it cannot be said that the said independent public witnesses are not respectable persons. Their evidence recorded during trial may be adjudged in accordance with law. In the second verdict A.Subair Vs. State of Kerala ( supra), the Hon'ble Apex Court has held in paragraphs 8 and 9 as follows:- "8. The essential ingredients of section 7 are:( i) that the person accepting the gratification should be a public servant;( ii) that he should accept the gratification for himself and the gratification should be as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official function, favour or disfavour to any person." "9. In so far as section 13( 1)( d) of the Act is concerned, its essential ingredients are:( i) that he should have been a public servant;( ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant, and ( iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person. For such an offence prosecution has to prove that the accused "obtained" the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption". In the third verdict State of Gujarat Vs. M.B.Dwivedi ( supra), Hon'ble Apex Court has been pleased to hold as follows:- "The abuse of the position would be the necessary ingredient of the offence the abuse being either by corrupt or illegal means or by other means of the nature mentioned in Narayanan Nambiar's case( AIR 1963 SC1116 )." In the present matter, all the essential ingredients as observed by the Hon'ble Apex Court in the said verdicts A Subair Vs. State of Kerla( supra) and State of Gujrat Vs.M.B.Dwivedi ( supra) are prima facie fulfilled as admittedly the applicant was a public servant and he accepted the illegal gratification from the complainant for making recommendation about the shed in his favour and giving the allotment order to him. The applicant accused was caught red handed while accepting the said illegal gratification of Rs.2000/- by the Anti Corruption Cell team and his fingers were washed with a solution of Sodium Carbonate, which turned into Pink colour. The said act of taking illegal gratification was in exercise of official functions of the applicant for favouring the applicant in allotment of the shed to him. The applicant has obtained Rs.2000/- for favouring the complainant and as such he abused his position as a public servant and accordingly the essential ingredients of Sections 7 and 13( 1)( d) of the Act prima facie appears to be fulfilled. In the fourth verdict, Soma Chakravarty Vs.State through CBI ( supra), the Hon'ble Apex Court has been pleased to hold that:- "There must exist some materials therefor. In the fourth verdict, Soma Chakravarty Vs.State through CBI ( supra), the Hon'ble Apex Court has been pleased to hold that:- "There must exist some materials therefor. The settled legal position is that if on the basis of material on record, the court could form an opinion that the accused might have committed offence it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of the charges the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true at that stage. Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial". Hon'ble Apex Court has further held that "charge may although be directed to be framed when there exits a strong suspicion but it is also trite that the court must come to a prima facie finding that there exist some materials therefor. Suspicion cannot alone, without anything more, it is trite, form the basis therefor or held to be sufficient for framing charge." In the next verdict C.K.Damodaran Nair Vs. Govt. of India( supra), the Hon'ble Apex Court has held that for the offence under Section 13( 1)( d) and 13( 2), the prosecution has to prove that the accused "obtained" the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption. In the next verdict T.Subramanian Vs. State of Tamil Nadu ( supra), the Hon'ble Apex Court has held that mere proof of receipt of money by accused, in absence of proof of demand and acceptance of money as illegal gratification, not sufficient to establish guilt of accused. In the next verdict Union of India though Inspector, CBI Vs. Purnandu Biswas ( supra), Hon'ble Apex Court has held in paragraph 36:- "36.In this case demand of illegal gratification by the respondent was not proved. In the next verdict Union of India though Inspector, CBI Vs. Purnandu Biswas ( supra), Hon'ble Apex Court has held in paragraph 36:- "36.In this case demand of illegal gratification by the respondent was not proved. Furthermore, Section 20 of the Act is not attracted as the respondent had been charged for commission of an offence under Section 13( 1) ( d) read with Section 13( 2) of the Act." In the next verdict C.M.Girish Babu Vs. CBI( Supra), Hon'ble Apex Court has been pleased to hold that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. In the last verdict State of Maharashtra and others Vs. Some Nath Thapa & others ( supra), the Hon'ble Apex Court has been pleased to hold that the court must apply its judicial mind to the material placed on record and the materials on record must satisfy the mind of the court framing the charge that the commission of the offence by the accused in question was probable. It is also held that it is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage." The present matter is at the stage of framing charges and as has been held by the Hon'ble Apex Court in the case of Soma Chakravarty Vs. State through CBI( supra) that at the time of framing of the charges, the probative value of the material on record cannot be gone into and the material brought on record by the prosecution has to be accepted as true at that stage and before framing a charge, the court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible. In the present matter, the learned trial court has discussed the material in detail and came to the conclusion that prima facie there are sufficient evidence to frame charges against the accused applicant and hence the charges under Sections 7 and 13( 1)( d) read with Section 13( 2) of the Act shall be framed against him. The learned trial court has categorically observed in the order impugned that the submission of the accused applicant that the cancellation of the allotment was under the jurisdiction of Directorate of Industry and the applicant has no role was not liable to be considered at the stage of discharge as admittedly the initial noting was being made by the applicant about which, he himself has stated. The learned trial court has also observed that after perusing the case diary, it is clear that the Investigating Officer after collecting the evidence during investigation has submitted the charge sheet finding a prima facie offence to be proved against the applicant and at this stage, it would be justified to consider the evidence collected by the Investigating Officer and the charge can be framed even on he basis of strong suspicion. Learned court below after considering the entire materials came to the conclusion that prima facie sufficient evidence for framing the charges was available on the record and accordingly rejected the discharge application moved by the applicant. As regards the first submission of the learned counsel that the alleged act of the applicant does not come under his official function, has no force as discussed above that the applicant accepted the illegal gratification for making recommendation in favour of the complainant and giving allotment order to him about the shed in question. The other submissions as raised on behalf of the applicant like the alleged amount of Rs.2000/- was the amount of rent for 80 months @ Rs.25/- per month and the same was utilized for demanding illegal gratification of Rs.2000/-; the applicant was in inimical terms with the complainant as he made recommendation for cancelling the allotment of the shed in question and the allotment order was not recovered from his possession may be his defence, which cannot be considered at the stage of framing of charges and the same may be considered at the appropriate stage of trial. In view of the aforesaid considerations and discussions, there appears no infirmity, illegality,irregularity or jurisdictional error in the order impugned passed by the learned trial court and this petition is meritless and is accordingly dismissed.