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Madhya Pradesh High Court · body

2016 DIGILAW 764 (MP)

Bahadur Singh Gujral v. State of Madhya Pradesh

2016-08-31

H.P.SINGH, S.K.GANGELE

body2016
ORDER : H.P. SINGH, J. 1. This Revision has been filed by the applicant under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the 'Code' for short), arising out of the order dated 11.05.2016 passed in Special Case No. 2/2016 by Special Judge, (Prevention of Corruption Act), Chhindwara (MP), whereby charge punishable under Section 7 of the Prevention of Corruption Act, 1988, has been framed against the applicant. 2. The prosecution story in nutshell is that at the relevant time, the applicant was posted as Lower Division Clerk, in the Area Leproscopy office at Chhindwara and he was given additional charge of Accountant in Community Health Centre (hereinafter referred to as CHC for short), Bichhua. On 30.8.2012, a complaint was made by employees of CHC against the applicant for demanding illegal gratification of Rs. 300/- from each employees against release of their arrears of 6th Pay Commission of 3rd instalments to Sub Divisional Officer (Revenue) Saonsar and on submitting that complaint, FIR was lodged under Crime No. 243/12 on 5.12.2012 by Police Station Bichhuwa, District Chhindwara. Before filing Challan, permission for prosecution against the applicant was sought from the competent authority, which was granted by CMHO Chhindwara on 5.12.2015 under Section 187 & 384 of Code read with Section 13(1)(d) (I) (III) of Prevention of Corruption Act. Subsequently, again in reference to the letter of Investigating Officer, CMHO Chhindwara, wrote a letter dated 22.1.2016 granting permission for prosecution against the applicant under Section 187 & 384 of Code and Section 7 of Prevention of Corruption Act. After completing the investigation and other formalities, Challan has been filed. 3. Learned trial Court vide its order dated 11.5.2016 found that prima facie case is made out against the applicant under Section 7 of the Prevention of Corruption Act, 1988, and framed charge accordingly, who abjured the guilt. 4. Learned counsel for the applicant submits that learned trial Court has failed to appreciate the factual aspects of the case and has wrongly framed charge against the applicant. He further submits that omnibus and general allegations have been made with regard to demand of illegal gratification on the ground of malice. Despite that, the applicant had already released the amount of arrears of 6th Pay Commission to the employees concerned for the relevant period. He further submits that omnibus and general allegations have been made with regard to demand of illegal gratification on the ground of malice. Despite that, the applicant had already released the amount of arrears of 6th Pay Commission to the employees concerned for the relevant period. Learned counsel further submits that the witnesses examined in the departmental enquiry have not supported the case of prosecution, therefore, allegation against the applicant itself does not constitute the ingredients of Section 7 of Prevention of Corruption Act. Upon these submissions, learned counsel for the applicant prayed for quashing the charge framed against the applicant. 5. On the other hand, learned Govt. Advocate appearing on behalf of the non-applicant/State has submitted that learned trial Court after appreciation of evidence has rightly framed the charge against the applicant. He prays for dismissal of the revision. 6. We have considered the rival submissions of learned counsel for the parties and perused the records. 7. Section 7 of the Prevention of Corruption Act, 1988, provides specifically about Public servant taking gratification other than legal remuneration in respect of an official act. It prescribes that whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, 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 functions, favour or dis-favour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than [three years] but which may extend to [seven years] and shall also be liable to fine. 8. Complaint against applicant is that during working as Govt. servant, he had demanded Rs. 300/- from each employee against release of their arrears of 6th Pay Commission. Meaning thereby, he had demanded and accordingly agreed to accept gratification other than remunerations. Evidence have been collected during the course of investigation, support the averments of complainant. 8. Complaint against applicant is that during working as Govt. servant, he had demanded Rs. 300/- from each employee against release of their arrears of 6th Pay Commission. Meaning thereby, he had demanded and accordingly agreed to accept gratification other than remunerations. Evidence have been collected during the course of investigation, support the averments of complainant. It is well established principle of law that at this stage trial Court is not required to weigh the evidence produced along with the charge sheet and if a strong suspicion arises from the material produced before the trial Court, charge can be framed against the accused. 9. In Amit Kumar v. Ramesh Chandra and another [ 2012 (9) SCC 460 ], the Supreme Court has held that presumption of accused committing an offence is not a presumption of law Such presumption may be weaker than a prima facie case. In Vinay Tyagi v. Ishad Ali @ Deepak and others [ 2013 (5) SCC 762 ], the Supreme Court has held that the prosecution case at the stage of framing of charge has to be examined on plea of demurrer i.e. assuming it to be true and presumption made at this stage is of weak and mild nature. In Union of India v. Prafulla Kumar Samal ( AIR 1979 SC 366 ), the Supreme Court has held that at the time of framing of charge (s) the judge would not make a roaming enquiry into the pros and cons of the matter and weigh the evidence as if he would conduct the trial. The Court has to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The similar view is taken by the Supreme Court in Niranjan Singh K.S. Punjabi v. Jitendra Bhimraj Bijjaya (AIR 1990 SC 1869). In State of Orissa v. Debendra Nath Padhi [ 2005 (1) SCC 568 : AIR 2005 SC 359 ], a three Judges Bench of the Supreme Court has laid down the law that at the stage of framing of charges the trial Court is only required to consider the charge-sheet and the material annexed therewith. At that stage, the defence of the accused cannot be considered. 10. At that stage, the defence of the accused cannot be considered. 10. The next point raised by the learned counsel for the applicant finds substance that the sanction was not accorded in accordance with law. The order of sanction to prosecute the applicant dated 5.12.2015 has been filed as Annexure P/10 along with the petition. It is mentioned in the order that matter was referred to the Additional Director for grant of sanction, however, no opinion had been received up to that date. "Hence, being the appointing authority, I grant sanction to file charge-sheet in the Court." It is not mentioned in the order that the authority had perused the record of the case and considered the material available on record to accord sanction. Only it is mentioned that being the appointing authority sanction is granted to produce charge-sheet before the Court. 11. The Apex Court in number of decisions has held that sanction to prosecute a government employee is not a mere formality, it requires application of mind, which means that the authority who had accorded sanction had to consider the record and thereafter, apply its mind that there is ample material available against the employee to accord sanction or not. 12. The Apex Court in the matter of Superintendent of Police (C.B.I.) v. Deepak Dhowdhary and others reported in AIR 1996 Supreme Court 186 has held as under: "We find force in the contention. The grant of sanction is only an administrative function, though it is true that the accused may be saddled with the liability to be prosecuted in a Court of law. What is material at that time is that the necessary facts collected during investigation constituting the offence have to be placed before the sanctioning authority and it has to consider the material. Prima Facie, the authority is required to reach the satisfaction that the relevant facts would constitute the offence and then either grant of refused to grant sanction. The grant of sanction, therefore, being administrative act the need to provide an opportunity of hearing the accused before according sanction does not arise. The High Court, therefore, was clearly in error in holding that the order of sanction is vitiated by the violation of the principles of natural justice." 13. The grant of sanction, therefore, being administrative act the need to provide an opportunity of hearing the accused before according sanction does not arise. The High Court, therefore, was clearly in error in holding that the order of sanction is vitiated by the violation of the principles of natural justice." 13. In the present case, there is no finding recorded by the authority that it has perused the record and applied its mind before granting sanction. Hence, the order for grant of sanction to prosecute the applicant is contrary to law. 14. Consequently, the petition is allowed in part. The order of framing of charge is upheld, however, the order of grant of sanction to prosecute the applicant is hereby quashed. It is further observed that the competent authority is at liberty to consider the case of the applicant for grant of sanction in accordance with law and thereafter, the trial Court shall proceed in the matter in accordance with law. 15. Accordingly, the revision is finally disposed of.