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Bombay High Court · body

2015 DIGILAW 2379 (BOM)

Ramchandra v. State of Maharashtra

2015-10-21

P.R.BORA, R.M.BORDE

body2015
Judgment P.R. Bora, J. 1. Rule. Rule made returnable and heard forthwith with the consent of learned Counsel for respective parties. 2. The petitioner has filed the present petition for quashment of the FIR bearing Crime No.25/2015, registered against him at Bhokar Police Station for the offenses under Sections 7, 12, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. 3. The petitioner is presently working as Vice Principal of Digambarrao Bindu Arts and Commerce College at Bhokar, Taluka Bhokar, District Nanded (hereinafter referred to as `the college'). On 30th of June, 2015, one student viz. Sunil Bhaurao Madilwad approached the Anti Corruption Bureau, Nanded, and informed that he is pursuing his education as a student of Yashwantrao Chavan Maharashtra Open University, Nashik (hereinafter referred to as `the Open University') center of which is being run at the College at Bhokar. The said student complained that, for admission to the third year of the Bachelore of Arts Course, though the admission fee to be paid to the Open University is Rs.800/-, Principal Shri Chavan and Vice Principal Shri Bhise of the college are unauthorizedly asking for additional amount of Rs.200/- of which no receipt will be given. It was, therefore, the contention of the said student that the amount of Rs.200/- was being asked as a bribe from him which he was unwilling to pay but was compelled to pay the same since its non payment would result in cancellation of his admission. On lodgement of such complaint by the said student, trap was laid by the Anti Corruption Bureau, Nanded, and the further process was carried out. 4. As is revealing from the contents of the FIR, prior to laying of the trap, the conversation in between complainant Madilwad and Vice Principal Shri Bhise was tape-recorded. The prosecution case further demonstrates that one Pralhad Suryawanshi, Clerk in the Study Center of the Open University, accepted the amount of Rs.200/- on behalf of Vice Principal Shri Bhise in presence of the Panch witnesses and was trapped by the Officers of the Anti Corruption Bureau, Nanded, while accepting the said amount. The Officers of Anti Corruption Bureau then performed usual formalities of preparing Panchnama, etc. It is also revealed that the Officers of Anti Corruption Bureau conducted search of the house of Vice Principal Shri Bhise in presence of the Panch witnesses. The Officers of Anti Corruption Bureau then performed usual formalities of preparing Panchnama, etc. It is also revealed that the Officers of Anti Corruption Bureau conducted search of the house of Vice Principal Shri Bhise in presence of the Panch witnesses. Shri Bhise was arrested and was produced before the Additional Sessions Judge, Bhokar. He was released on bail on the same day. 5. Heard Shri R.N. Dhorde, learned Senior Counsel appearing for the petitioner, Shri S.G. Karlekar, learned A.G.P. Perused the FIR, pre-trap and post-trap panchnamas, the transcription of the tape-recorded conversation and all other documents placed on record by the petitioner and the prosecution. 6. Petitioner has, in toto, denied the allegations made against him of demanding and accepting the amount of Rs.200/- from the complainant by way of bribe. It is the specific contention of the petitioner that the amount of Rs.200/- accepted by Shri Pralhad Suryawanshi was towards the Center Development Charges and the same was being officially and authorizedly collected from the students of the Open University. It is also the contention of the petitioners that proper account is being maintained of the said amount. 7. In order to substantiate the contentions so raised, the petitioner has filed on record several documents. The petitioner has placed on record circular dated 23rd November, 2001, issued by the Department of Higher and Technical Education, State of Maharashtra, which pertains to the assistance from the educational institutions to Yashwantrao Chavan Maharashtra Open University for conducting its various courses. Clause (iv) of the said circular provides that the Government approved Colleges or educational institutions, through which the courses of the Open University are conducted, shall make available to the students of the Open University the facilities available at their college/institution like library, laboratory, etc. and in such case, it would be open for the said College or institution to collect the adequate fees from the said students. 8. As submitted by learned Senior Counsel for the petitioner, in view of the aforesaid circular dated 23rd November, 2001, the management of the college, in its Board meeting held on 15th August, 2014, resolved to collect a fees of Rs.200/- from the students of the Open University who may opt for the facilities like library, laboratory, etc. 8. As submitted by learned Senior Counsel for the petitioner, in view of the aforesaid circular dated 23rd November, 2001, the management of the college, in its Board meeting held on 15th August, 2014, resolved to collect a fees of Rs.200/- from the students of the Open University who may opt for the facilities like library, laboratory, etc. The aforesaid amount was to be collected by way of donation and was to be used for development of the Study Center set up for the students of the Open University. In the resolution itself it has been clarified that the fees/contribution of Rs.200/-, as aforesaid, will be voluntary. The petitioner has placed on record copy of the said resolution. 9. The petitioner has also furnished on record copy of the notice dated 20th of June, 2015, displayed on the Notice Board of the College informing to the Students of the Open University about the contribution to be paid by the students to the tune of Rs.200/- towards the Center Development Charges. It is clarified in the said circular that the said amount of Rs.200/- is being collected for providing practical material, library facilities and for making available the cold drinking water to the said students. The notice also contains an averment that the contribution is optional and not compulsory. 10. Further, the petitioner has kept on record the xerox copy of the register maintained in respect of admissions of the students to the courses of the Open University containing certain particulars in the tabular form. We would refer to the said particulars at the appropriate stage. 11. The petitioner has then produced on record the particulars of the student-wise and course-wise fees deposited in the Bank account on 29th and 30th of June, 2015. The petitioner has also placed on record the xerox copies of the Passbook pertaining to Account No.5413907770-3 at Maharashtra Gramin Bank, branch at Bhokar which is in the name of Yashwantrao Chavan Maharashtra Open University - Digambarrao Bindu college, Bhokar. The Bank slips by which certain amounts were deposited in the aforesaid Bank account on 29th and 30th of June, 2015 too are filed. The petitioner has also submitted on record copies of few receipts issued for the amount of Rs.800/- and Rs.200/-, respectively. 12. The Bank slips by which certain amounts were deposited in the aforesaid Bank account on 29th and 30th of June, 2015 too are filed. The petitioner has also submitted on record copies of few receipts issued for the amount of Rs.800/- and Rs.200/-, respectively. 12. It is significant to note that the documents so filed on record by the petitioner and the contentions raised with reference to the said documents by him in the petition have not been controverted, denied or disputed by the prosecution. 13. Moreover, Dr. Punjab Anandrao Chavan, the Principal of Digambarrao Bindu College at Bhokar who is respondent no.3 in the present petition, in his affidavit in reply has referred to almost all aforesaid documents and has confirmed the authenticity of the said documents. Shri Chavan, in his affidavit in reply has categorically stated that Shri Pralhad Suryawanshi was collecting the fees of Rs.200/- from the students of the Open University towards the charges for making certain facilities available to the said students at the Study Center of the College. Shri Chavan has further stated that the amount of Rs.200/- was and is being accepted from the students of the Open University on the strength of clause (iv) of the Government Circular dated 23rd November, 2001, and in accordance with the resolution dated 15th August, 2014, passed in the meeting of the management board of the College in that regard. Further, Shri Chavan has given justification for collecting the amount of Rs.200/- from the students of the Open University. He has also stated about the maintenance of the separate Bank account for depositing the amount of Rs.200/- accepted from the students. Shri Chavan has further clarified that payment of Rs.200/- was optional and has pointed out the fact of some of the students not paying the said amount. 14. We have carefully considered the aforesaid documents. Having regard to the circular dated 23rd November, 2001, issued by the Government of Maharashtra, and the resolution passed on 15th August, 2014, in the meeting of the management board of the college, there remains no doubt that the amount of Rs.200/- was being authorizedly collected by Shri Pralhad Suryawanshi from the students of the Open University and accordingly, the same was also received by Shri Suryawanshi from complainant Madilwad on the date of the incident i.e. 1st of July, 2015. The question arises, can the said amount be termed as bribe or illegal gratification when it was being collected authorizedly and on the basis of the aforesaid Government circular and the resolution passed by the college management in that regard. The inevitable answer is, "NO". 15. Explanation (c) to Section 7 of the Prevention of Corruption Act, 1988, defines the term "Legal Remuneration" which reads thus: "(c) "Legal remuneration". The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government, or the organization, which he serves, to accept." The documents filed on record by the petitioner clearly establish that the collection of Rs.200/- was permissible by virtue of the Government Resolution dated 23rd November, 2001, and the resolution passed on the strength of the said Government Resolution in the meeting of the management board of the college held on 15th August, 2014. It is thus evident that the amount of Rs.200/- obtained by Shri Suryawanshi from the complainant Madilwad falls within the ambit of legal remuneration. 16. In the above circumstances, we have no hesitation in holding that the amount of Rs.200/- so received by Shri Suryawanshi from the complainant Madilwad on the date of the incident was not bribe or illegal gratification. No prosecution for the offenses punishable under Sections 7, 12, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act can, therefore, be maintained against the petitioner and deserves to be quashed. It would be the abuse of process of law to allow the said proceedings to continue further. 17. If somebody approaches the Police with some complaint, it is true that the Police cannot, at the threshold, refuse to accept the said complaint. However, it does not mean that the Police shall accept whatever is stated in the said complaint to be gospel truth and initiate criminal action against the person named in the said complaint without even prima-facie verifying the genuineness of the allegations made in the said complaint. In the instant case, it is apparently revealed that Shri Sanjay Venkatesh Kulkarni, the Deputy Superintendent of Police, Anti Corruption Bureau, Nanded, who received the complaint and took the further action against the petitioner, has committed the grave mistake of not verifying the genuineness of the allegations made in the complaint against the petitioner before initiating the further actions. In the instant case, it is apparently revealed that Shri Sanjay Venkatesh Kulkarni, the Deputy Superintendent of Police, Anti Corruption Bureau, Nanded, who received the complaint and took the further action against the petitioner, has committed the grave mistake of not verifying the genuineness of the allegations made in the complaint against the petitioner before initiating the further actions. We have carefully perused the FIR lodged by said Shri Kulkarni wherein he has reproduced the gist of the complaint made to him by Shri Madilwad. The complaint made by said Shri Madilwad, even if accepted as it is, does not reveal any offense under the Prevention of Corruption Act. Merely because the complainant has alleged that receipt is not being given of Rs.200/-, Shri Kulkarni (respondent no.2), on that basis, should not have jumped to the conclusion that the amount is bribe or illegal gratification. It was not the case of complainant Shri Madilwad that though the amount of Rs.200/- is stated to be towards building fund, in fact, under the garb of building fund, the petitioner was to receive the said amount illegally and unauthorizedly for his own benefit. In absence of any such specific allegation by complainant Madilwad, the fact remains that, rightly or wrongly, the amount, which was being collected, was towards building fund. Whether collection of such building fund is legal, just and proper is quite a different issue and the complainant was having every right to object for the same, and agitate on that issue. However, acceptance of such an amount even if held unjust, will not come within the purview of bribe or illegal gratification. In the circumstances, it appears to us that before taking any drastic step of laying trap, etc., the respondent no.2 must have carried out the preliminary enquiry. Had he done so, perhaps, he would have come to know that the amount of Rs.200/- is being officially and authorizedly collected and there is no substance in the allegation made by the complainant that the said amount is being asked for as a bribe. 18. The material on record reveals that an attempt was certainly made by respondent no.2 to verify the demand as alleged by the complainant. For that purpose, Respondent no.2 got tape-recorded the conversation between complainant Madilwad and the present petitioner. 18. The material on record reveals that an attempt was certainly made by respondent no.2 to verify the demand as alleged by the complainant. For that purpose, Respondent no.2 got tape-recorded the conversation between complainant Madilwad and the present petitioner. In the FIR, respondent no.2 has noted that after hearing the taperecorded pre-trap conversation between the complainant and the present petitioner, he was convinced that the amount of Rs.200/- demanded by the petitioner was illegal gratification for himself and he, therefore, took the decision to lay a trap to apprehend the petitioner red handed. It is, therefore, necessary to look into the said conversation, the transcription of which is available on record; it reads thus:- XXXX XXXX XXXX Upon reading the conversation as above, we find it difficult to agree with the opinion formed by respondent no.2 that there was a demand from the present petitioner and that it was in the shape of bribe. The aforesaid conversation not at all reveals that any demand was made by the present petitioner. On the contrary, it is discernible that the complainant was well aware of the fact that for taking admission to Third Year B.A. Course he will have to pay Rs.1,000/- of which Rs.800/- was the fees of the Study Center and Rs.200/- were to be paid to the college, which he has named as building fund. It also appears that the complainant was unwilling; rather, reluctant, to pay the said amount of Rs.200/-. He, therefore, asked the petitioner whether payment of Rs.200/- was necessary whereupon the petitioner gave an understanding to him saying that when college is making available so many facilities to the students, the complainant shall not make any grievance in that regard and it would be advisable that he pays the said amount. We reiterate that whether asking of such amount towards Center Development charges or building fund, was just and proper is quite a different issue but, in any case, on that ground the amount of Rs.200/- cannot be termed as bribe or illegal gratification. 19. In so far as giving receipt of the amount of Rs.200/- is concerned, the conversation demonstrates that the petitioner has explained to the complainant that he will certainly get the receipt once the admission process is completed. 19. In so far as giving receipt of the amount of Rs.200/- is concerned, the conversation demonstrates that the petitioner has explained to the complainant that he will certainly get the receipt once the admission process is completed. From the further talk, it can be perceived that the complainant irritated the petitioner by stretching the issue of receipt of the amount of Rs.200/- and possibly that was the reason that the petitioner told the complainant to get the admission in such a college where he will get the receipt. However, the conversation, read as a whole and which must be read as a whole, no such inference is possible that any demand was made by the petitioner or that the amount of Rs.200/- was an unreceipted payment. Thus, no further action was in fact warranted. Respondent no.2, however, it seems that, was determined to proceed further and hence though there was no sufficient material making out any case against the petitioner, decided to lay a trap and, accordingly laid the same. 20. The post trap panchnama shows that before accepting the amount of Rs.200/- from the complainant, the Center Assistant, namely, Pralhad Suryawanshi filled in certain particulars in one register and asked the complainant to tell his mobile number and noted it down in the column in the said register reserved for the said purpose and then asked the complainant to put his signature in the said register in the column meant for such signature. Accordingly, the complainant put his signature and only thereafter, the amount of Rs.200/- was accepted by the said Pralhad Suryawanshi. The averments of post trap panchnama also reveal that the said register was seized by the Police. 21. The post trap panchnama also reveals that respondent no.2 seized few Bank slips and the particulars in respect of the amounts deposited in the Bank account in the name of the Study Center. As mentioned earlier, the petitioner has filed on record copies of the said Bank slips as well as the particulars of the amount deposited in the Bank. 22. As noted here-in-before, the petitioner has filed on record the xerox copies of the extract of admission register. We deem it appropriate to reproduce some portion of one such extract which contains the particulars in respect of complainant Madilwad. 22. As noted here-in-before, the petitioner has filed on record the xerox copies of the extract of admission register. We deem it appropriate to reproduce some portion of one such extract which contains the particulars in respect of complainant Madilwad. It reads thus: T.Y./B.A./B.Com v-Ø- fon;kF;kZaph ukos v-dsanz fQl oxZ fnukad eksckbZy Lok{kjh 75 tk/ko lfpu xkso/kZu 800@& 200@& T.Y. B.A. 01@07 7875011865 76 ijluokM iaMhr ukjk;.k 800@& 200@& T.Y. 01@07 9158551876 77 'kknqyokj Økarh ukxukFk 800@& 200@& T.Y. 01@07 8888012558 78 'kknqyokj ujs'k mes'k 800@& 200@& T.Y. 01@07 8888012558 79 eksjs lqeu fd'kujko 800@& 200@& T.Y. 01@07 9271870714 80 ekatjs ekjksrh ukjk;.k 800@& 200@& T.Y. 01@07 9158572764 81 ;snGs ikaMqjax nRrk 800@& 200@& T.Y. 01@07 9156507581 82 jkBksM jkolkgsc ckiqjko 800@& 200@& T.Y. 01@07 8007205152 83 enhyokM lqfuy HkkÅjko 800@& 200@& T.Y. 01@07 8888936092 When the above register was filled in by said Suryawanshi in presence of respondent no.2, and when the said register was seized by the Police, it has to be assumed that respondent no.2 must have gone through the contents of the said register, which clearly show that a note has been taken in the said register of receiving Rs.800/- towards the Study Center Fees and Rs.200/- towards Center Development Charges. Respondent no.2 ought to have realized that the amount which is being taken note of, the amount which is being deposited in the Bank, the amount of which an account is maintained, the amount which is received under the signature of the payee, cannot be an amount of bribe. As such, respondent no.2 should have refrained from taking any further action. Even at that stage, if respondent no.2 would have enquired with the college administration, he would have certainly come to know that the amount accepted from the complainant was lawfully and authorizedly accepted. 23. In so far as the allegation that no receipt was being given of the said amount of Rs.200/- is concerned, the same is also noticed to be unsustainable in view of the fact that the petitioner has placed on record few of such receipts demonstrating the receipt of payment of Rs.200/-. In the instant case, from the material on record, even no such allegation can lie against the petitioner that Pralhad Suryawanshi though received the amount of Rs.200/- did not issue any receipt thereof in view of the fact that immediately after receipt of the amount, said Suryawanshi was apprehended. In the instant case, from the material on record, even no such allegation can lie against the petitioner that Pralhad Suryawanshi though received the amount of Rs.200/- did not issue any receipt thereof in view of the fact that immediately after receipt of the amount, said Suryawanshi was apprehended. It is not the case of the prosecution and there is no such material placed on record by the prosecution showing that the receipt of the said amount of Rs.200/- was demanded; but, was not issued. The circumstances show that, at the relevant time, even the receipt of payment of Rs.800/- was also not issued by said Pralhad Suryawanshi and before that he was apprehended. 24. From the entire aforesaid episode, it is difficult, nay impossible, to draw any such inference or reach to any such conclusion that said Pralhad Suryawanshi had accepted the amount of Rs.200/- by way of bribe or illegal gratification. There is further nothing on record to show that said Pralhad Suryawanshi had at any point of time disclosed to the Police Officers that he was directed by Vice Principal Bhise i.e. the present petitioner to collect such amounts. Thus, there was absolutely no material with respondent no.2 so as to proceed against the present petitioner. 25. As discussed earlier, from the documents filed on record which have remained uncontroverted, it has been fully established that the amount of Rs.200/- was being collected authorizedly and in no case it can be termed as bribe. We have also referred to the pre-trap taperecorded conversation from which also no wise and prudent man will draw any such inference that any amount was demanded by the present petitioner by way of bribe. We have also referred to the averments in the post trap panchnama about the seizure of the register and Bank slips and the particulars as regards to the deposits made in the Bank which also lead to the only inference that the amount which was received cannot be an amount of bribe. 26. We reiterate that at no stage any material was available against the petitioner so as to book him for the offenses under the Prevention of Corruption Act. Inspite of that, respondent no.2 not only arrested the petitioner but proceeded further to conduct the search of his house. Taking house-search of a person is a serious action. 26. We reiterate that at no stage any material was available against the petitioner so as to book him for the offenses under the Prevention of Corruption Act. Inspite of that, respondent no.2 not only arrested the petitioner but proceeded further to conduct the search of his house. Taking house-search of a person is a serious action. No doubt a Police Officer making an investigation possesses power under Sub Section (1) of Section 165 of Criminal Procedure Code to conduct such house-search, but there must be reasonable grounds for believing that anything necessary for the purpose of an investigation into an offence which he is authorized to investigate cannot be otherwise obtained except the house-search without undue dealy. It is further imperative that such officer record in writing the grounds of such belief to cause the search before he proceeds for such action. In the instant case, no material is produced to show that Respondent No.2, who caused and conducted the search of the house of the petitioner had any reasonable ground for believing that the things cannot in his opinion be otherwise obtained except the house-search of the petitioner without any delay. It is the matter of record that nothing objectionable was revealed through the house search so conducted. The fact, however, remains that it caused great embarrassment not only to the petitioner alone, but also to his family members. The damage caused to the reputation of the petitioner may never be compensated. According to us, the action of Respondent No.2 to take house-search of the petitioner was a perverse action. 27. After having considered the material available on record, it can be firmly inferred that the entire action so taken against the petitioner was wholly unwarranted. Since beginning, there was no material against the petitioner; neither in the complaint lodged by Shri Madilwad nor in the pre-trap panchnama nor in the tape-recorded conversation and also not in the post trap panchnama. We are constrained to observe that present is a glaring example of the abuse of powers by the Police machinery. It was brought to our notice by the learned Senior Counsel that on the next day of the incident, there were news in almost every newspaper regarding the trap conducted against the petitioner and his subsequent arrest. We are constrained to observe that present is a glaring example of the abuse of powers by the Police machinery. It was brought to our notice by the learned Senior Counsel that on the next day of the incident, there were news in almost every newspaper regarding the trap conducted against the petitioner and his subsequent arrest. It is explicit that because of the present incident, the petitioner, who is Vice Principal of one well known college, suffered great humiliation and reputation was put in perils. The trauma through which the petitioner and his family members might have undergone at the relevant time can very well be visualized. Without any fault on his part, the petitioner was subjected to immense harassment, enormous humiliation, mental pain and agony. We express our deep concern as regards the arbitrary and high handed action noticed in the present case at the hands of respondent no.2. On set of the facts existing in the present case, according to us, even a newly recruited Police Officer might not have thought of taking any action against the petitioner. It is much disturbing that such action is taken by an officer of the rank of Dy. S.P. Conduct revealed of this officer has raised serous doubt about his credentials as well as competence. We expect that the higher Police Officers will take some remedial measures in this regard so that the Police power is not used as a tool of harassment and the ill motivated or incompetent police officers do not play with the lives of the innocent persons. 28. In view of the fact that the petitioner, who holds the post of Vice Principal of one College, and possesses a Doctoral degree, was unnecessarily subjected to undergo the ordeal of trap ... then arrest and thereafter the house search, though the petitioner has got a private law remedy to claim compensation, that may not deter this Court to order for payment of compensation in the peculiar facts and circumstances of this case. The mental pain and agony suffered by the petitioner may not be compensated in terms of money, however, as a measure of caution to the Police that no such instance recurs in future, we, by way of compensation, award token amount of Rs.25,000/- (Rs. twenty five thousand) to the petitioner, to be paid by the State. 29. The mental pain and agony suffered by the petitioner may not be compensated in terms of money, however, as a measure of caution to the Police that no such instance recurs in future, we, by way of compensation, award token amount of Rs.25,000/- (Rs. twenty five thousand) to the petitioner, to be paid by the State. 29. For the reasons discussed here-in-above,- (1) we quash and set aside the FIR bearing Crime No.25/2015, registered against petitioner at Bhokar Police Station for the offenses under Sections 7, 12, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, as we hold that no prima facie case under Sections 7, 12, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, is made out under the prevailing facts and circumstances of the case and hence proceedings in the FIR (Crime No.25/2015) registered against the present petitioner would ultimately result in abuse of process of the Court and so also huge wastage of time and energy of the Court. Petition thus stands allowed. (2) The State of Maharashtra shall pay Rs.25,000/- as compensation to the petitioner within a period of three months from the date of this order. (3) The Registry shall forward copy of this order to the Home Secretary of the State. Rule made absolute. No order as to costs.