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2014 DIGILAW 1467 (HP)

Sanjeev Kumar v. State of Himachal Pradesh

2014-10-17

SURESHWAR THAKUR

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JUDGMENT : Sureshwar Thakur, J. An FIR bearing No.98 of 2011 of 18.4.2011, under Sections 420, 468 and 471 of the Indian Penal Code comprised in Annexure P-1, was lodged in Police Station, Sadar Una, District Una, against the petitioner. Sub Inspector Yashpal Gautam carried out the investigation into the offences constituted by the FIR aforesaid. 2. The petitioner avers that during the course of the aforesaid investigation carried out by Sub Inspector Yashpal Gautam, a sum of Rs.15,000/- was demanded by the latter as illegal gratification for obtaining a favourable opinion from RFSL, Dharmshala. A complaint comprising the aforesaid demand by SI Yashpal Gautam for illegal gratification was made by the petitioner before the Anti Corruption Bureau, Hamirpur. The said complaint is comprised in Annexure P-2 annexed with the petition. A raiding party was formed to nab red handed SI Yashpal Gautam. However, a perusal of Annexure P-3, divulges that though the bribe amount was offered to Sub Inspector Yashpal Gautam yet it was refused to be accepted by him. 3. On the contrary, the petitioner has averred in the petition that the said refusal on the part of Sub Inspector Yashpal Gautam to accept the bribe amount from him when offered to him by the former while his forming a part of the raiding party as a decoy, is pretextual, as Sub Inspector Yashpal Gautam had rather than accepting the bribe amount from the petitioner in his hands had directed him to put it in a hole of the wall in his room. On strength thereof, it is contended by the learned counsel appearing for the petitioner that the proceedings launched against him in consequence of lodging of FIR No. 219 of 4.9.2011 (Annexure P-3) with an enunciation in it of the petitioner having offered a sum of Rs.15,000/- as illegal gratification to SI Yashpal Gautam for its onward transmission to Mr. Arun Sharma, Dy. Director, RFSL, Dharamshala, for obtaining a favourable opinion in FIR No. 98 of 2011 (Annexure P-1), lodged against the petitioner for his having committed offences under Sections 420, 468 and 471 of the I.P.C., as such, constituting an offence punishable under Section 12 of the Prevention of Corruption Act, are both untruthful as well as arise from a prevaricated and slanted investigation of a partisan Sub Inspector Yashpal Gautam. Besides he contends that its lodging is a sheer handiwork of or a manipulation at the instance of SI Yashpal Gautam. Consequently, he urges that the order framing charge against him by the learned trial Court for his having allegedly committed offence under Section 12 of the Prevention of Corruption Act in furtherance of FIR No. 215 of 4.9.2011 be quashed and set aside. The learned counsel appearing for the petitioner with force has contended that the order framing charge for his having committed an offence under Section 12 of the Prevention of Corruption Act as constituted by FIR No. 215 of 2011 (Annexure P-3) is generated by sheer non application of mind. However, the learned counsel for the petitioner is amiss, in making the said contention projected by him before this Court as he has failed to place on record any material demonstrating, that in the learned trial Court proceeding to frame the charge against the petitioner in pursuance to FIR No. 215 of 2011 of 4.9.2011 had excluded from consideration apposite and germane material and had taken into consideration excludable material. Besides per se the reading of the material as available on record rather personifies the factum of Sub Inspector Yashpal Gautam, a public servant, who allegedly demanded illegal gratification and for whose nabbing a raiding party was formed comprising the petitioner handling a sum of Rs.15,000/- demanded as illegal gratification by him from the petitioner, had refused to accept the said amount from the petitioner. Only in the event of the aforesaid Sub Inspector Yashpal Gautam having accepted the bribe amount would the provisions of Section 24 of the Prevention of Corruption Act provide an immunity to the bribe giver or its applicability is invoked only in case he displays his willingness to pay the illegal gratification to a public servant through/under the aegis of the police agency for trapping a public servant. However, the said immunity would not come to be attracted, in case the petitioner proceeds to independently or voluntarily dehors his eliciting the collaboration of the police agency offers or attempt to offer illegal gratification for obtaining a prohibited gain or advantage from a public servant. Provisions of Section 24 of the Prevention of Corruption Act reads as under:- “24. Statement by bribe-giver not to subject him to prosecution. Provisions of Section 24 of the Prevention of Corruption Act reads as under:- “24. Statement by bribe-giver not to subject him to prosecution. Notwithstanding anything contained in any law for the time being in force, a statement made by person in any proceeding against a public servant for an offence under Section 7 to 11 or under Sections 13 or Section 15, that the offender agreed to offer any gratification (other than legal remuneration) or any valuable thing to the public servant shall not subject such person to a prosecution under Section 12.” For testing whether the immunity with which the petitioner was clothed by Section 24 of the Prevention of Corruption Act, it is necessary to bear in the mind that Annexure P-3, divulges the factum of a refusal of the Investigating Officer to accept the demand of illegal gratification from the petitioner with his comprising a decoy witness and handling a sum of Rs.15, 000/-. With a perusal of Annexures R-I, R-II and R-III on 3.9.2011, prepared a day preceding to the lodging of FIR, Annexure P-2, marking the fact of RFSL, Dharmshala having rendered an opinion on the specimen and disputed signatures of the petitioner sent to it for comparison gives leverage to the inference that, hence, when the work for which the demand for purported illegal gratification was made had then concluded or had terminated, of which the petitioner appears to be unaware, renders concocted the version as spelt out by the petitioner in his complaint, Annexure P-2. Moreso, when the offer of illegal gratification made by the petitioner to the Investigation Officer, comprised in Annexure P-3 is not demonstrated by any cogent evidence existing on record to have been made in collaboration with or under the aegis of the Police Agency, as corollary then it is, hence, bereft of the mantle of immunity vested in the petitioner by the provisions of Section 24 of the Prevention of Corruption Act. As a concomitant then the revelations by Annexures R-I, R-II & R-III, all cumulatively and unanimously divulge the fact of the petitioner rather taking to attempt to offer illegal gratification for obtaining an illegitimate favour from the Investigating Officer in case FIR No.98 of 2011, Annexure P-1 lodged against the petitioner in Police Station Sadar Una. As a concomitant then the revelations by Annexures R-I, R-II & R-III, all cumulatively and unanimously divulge the fact of the petitioner rather taking to attempt to offer illegal gratification for obtaining an illegitimate favour from the Investigating Officer in case FIR No.98 of 2011, Annexure P-1 lodged against the petitioner in Police Station Sadar Una. The complaint, comprised in Annexure P-2 is then obviously construable to be a sequel to the unleashing of a backlash by the petitioner against the Investigating Officer arising from the latter refusing to comply with the untenable desire of the petitioner. In sequel to the above findings, it appears that the order framing the charge when, hence, has not been demonstrated to be arising from sheer non application of mind by the learned trial Judge to the entire material on record inasmuch as in the learned trial Courtin rendering it had excluded apposite and germane material and had taken into consideration excludable material, it does not suffer from any material illegality or legal impropriety. 4. Before parting, it is deemed fit and appropriate to clarify that the contentions as urged before this Court by the learned counsel for petitioner may be urged by the petitioner in defence during the course of his trial for his having committed an offence punishable under Section 12 of the Prevention of Corruption Act for which he has come to be charged. However, at this stage prima facie on a perusal of the material on record, it appears that the learned trial Judge in framing the charge has traversed through the entire material on record. Even otherwise, the contentions as raised before this Court by the learned counsel for the petitioner for ingraining the order framing charge with the vice of infirmity or its suffering from vitiation, cannot be come to be countenanced for the reasons as already submitted hereinabove. 5. In view of the above, there is no merit in this petition which is dismissed accordingly. However, even if this Court has at this stage prima facie rendered an opinion qua the tenability of the order framing charge against the petitioner nonetheless any expression made by this Court qua the legality of the order framing charge by the learned trial Judge against the petitioner/accused be not construed as a decision on merits nor would it preclude the petitioner to agitate his defence before the learned trial Judge. No costs. 6. All the pending applications also stand disposed of.