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Madhya Pradesh High Court · body

2017 DIGILAW 1068 (MP)

Kamta Prasad Sharma v. Special Police Establishment, Lokayukta

2017-10-09

ASHOK KUMAR JOSHI, SHEEL NAGU

body2017
ORDER Nagu, J. -- 1. The revisional powers of this Court are invoked for assailing the framing of charge under section 7 of the Prevention of Corruption Act, 1988( for brevity “PC Act”) by order dated 19.5.2017 in case No.3/2017 passed by Special Sessions Judge (Prevention of Corruption Act), Shivpuri . 2. Learned counsel for the rival parties are heard on the question of admission. 3. Learned counsel for the petitioner by relying upon the decisions of the apex Court in the case of T.K. Ramesh Kumar v. State through Police Inspector, Bangalore [ (2015)15 SCC 629 ], (Paras:11 and 14) and Mukut Bihari and another v. State of Rajasthan [ (2012)11 SCC 642 ] (Para:11) submits that in the given facts and circumstances of the case there is neither any demand nor any acceptance of illegal gratification, and thus offence punishable under section 7 of the PC Act is not made out. 3.1 Learned counsel for the petitioner has also pressed into service the decision of the apex Court in the case of Satish Mishra v. State (NCT of Delhi) and another [(2012)13 SCC 614] ( Paras:14,16 & 19) to emphasize that the inherent powers under section 482 CrPC can be invoked at any stage of the trial. However, decision in the case of Rajiv Thapar and others v. Madan Lal Kapoor [ (2013)3 SCC 330 ] (Para:27, 29 and 34) is relied upon to contend that under section 482 CrPC this Court is empowered to scrutinize the defence documents for adjudging the validity of charge framed against the petitioner. Further, decision in the case of Roy V.D. v. State of Kerala [ (2000)8 SCC 590 ] (Para:18) is also pressed into service to remind this Court of the wide amplitude of its inherent power under section 482 CrPC. 3.2 On merits, it is submitted by the petitioner that there is neither any prima facie evidence of demand nor acceptance of illegal gratification on the part of the petitioner. It is further submitted that on the date of incident i.e. 28.3.2016 when the complainant was sent by the investigating agency with the taperecorder by laying trap, to record the conversation of demand of illegal gratification, the petitioner was not found at the police station. It is further submitted that on the date of incident i.e. 28.3.2016 when the complainant was sent by the investigating agency with the taperecorder by laying trap, to record the conversation of demand of illegal gratification, the petitioner was not found at the police station. It is also submitted by learned counsel for the petitioner that petitioner's name is not K.K. Sharma but Kamta Prasad Sharma and, therefore, entire premise of the prosecution against Kamta Prasad Sharma based upon the telephonic conversation and complaint, which does not mention the name of petitioner, cannot be sustained. It is lastly submitted that the complainant Harveer Singh Dhakad while deposing before the trial Court in the trial has turned hostile and has not supported the story of the prosecution and therefore, no useful purpose shall be served to continue with the prosecution since acquittal is now a fait accompli. 4. On the other hand, prosecution has relied upon the Division Bench decision of this Court in Criminal Revision No.113/2016 (Karunesh Dandotiya v. State of M.P. and others) and other connected matters vide passed on 23.2.2017 to support the order of framing of charge by contending that the petitioner was SHO of the concerned police station against whom a written complaint was made. It is submitted that mere wrong mentioning of initials as K.K. Sharma instead of K.P. Sharma which is a mere typographical error, cannot render the prosecution void. It is also submitted that petitioner has not denied that he was the SHO at the relevant point of time at the Police Station Rannod, District Shivpuri. It is further submitted by learned counsel for the prosecution that recording of deposition of the prosecution witnesses is necessary. One of the principal prosecution witness Amar Singh Gil, who was a shadow witness is yet to be examined and therefore, the fact of complainant turning hostile is inconsequential. 5. Before proceeding with the case, this Court needs to remind itself that any event which takes place in the trial subsequent to the framing of charge (assailed herein) cannot be looked into for the purpose of deciding legality and validity of framing of charge against petitioner. Thus, the argument of the petitioner that complainant has turned hostile before the Court is inconsequential and therefore, is not being considered. Thus, the argument of the petitioner that complainant has turned hostile before the Court is inconsequential and therefore, is not being considered. 5.1 The scope of interference at the stage of charge is limited as the Court has to merely see that on the basis of material and evidence collected by the prosecution in the charge sheet whether a strong suspicion arises against the accused to compell him to undergo trial. 6. In the instant case, on the strength of the written complainant dated 26.3.2016 of the complainant Harveer Singh Dhakad a trap was laid by the prosecution. The complainant was provided with a tape-recorder and was given appropriate instructions for recording the voice of petitioner at the time when demand for illegal gratification is made. Shadow witness, Constable Amar singh, was sent with the complainant. The complainant and the said shadow witness reached the police station on 27.3.2016 where petitioner/accused was not found. Thereafter, on 28.3.2016 at 1:30 in the afternoon the complainant telephonically contacted the petitioner requesting for the lodging of report in respect of damage caused to his loaded vehicle in lieu of which the petitioner demanded a sum of Rs.5,000/- which was assured by the complainant to be given within one or two days. This conversation between the complainant and the petitioner was recorded by the complainant in the voice recorder provided by the prosecution to him which was handed over to the prosecution in a sealed packet in the presence of shadow witness Amar Singh. On the basis of this material, the prosecution lodged the Dehati Nalish which led to registration of offence punishable under section 7 of the Prevention of Corruption Act against the petitioner on 31.3.2016 vide FIR bearing Crime No.103/2016. It is pertinent to mention here that during the investigation the petitioner was asked to give his voice sample to the investigating agency which he declined by letter dated 27.7.2016 which is on record at page 80 of the paper book of this revision petition. 7. From the above material collected by the prosecution, strong prima facie suspicion arises where petitioner demanded illegal gratification which is a cognizable offence under section 7 of the P. C.Act. 8. Thus, the demand of illegal gratification which is an essential ingredient for constituting offence punishable under section 7 of the P. C. Act appears to be prima facie made. From the above material collected by the prosecution, strong prima facie suspicion arises where petitioner demanded illegal gratification which is a cognizable offence under section 7 of the P. C.Act. 8. Thus, the demand of illegal gratification which is an essential ingredient for constituting offence punishable under section 7 of the P. C. Act appears to be prima facie made. Few minor lacunas in the prosecution story which are not grave enough to substantially damage the prosecution story, cannot be looked into at this stage of framing of charge. Decision in the case of T.K. Ramesh Kumar and Mukut Bihari (supra), relied upon by the petitioner are of no avail since they are related to interference made by the apex Court against the conviction and not at the stage of framing of charge. 9. The non-availability of the petitioner at the police station when the complainant approached him to offer the demanded illegal gratification is inconsequential in the face of the voice recorded of the conversation between the complainant and the petitioner-accused, prima facie discloses case of illegal gratification. Suspicion against the petitioner becomes more strong by the fact of petitioner having declined the invitation of the investigating agency to take his voice sample. Meaning thereby, the petitioner did not want his voice sample to be compared with the conversation available with the investigating agency. This definitely arises inference of guilty mind of the petitioner-accused. 10. In view of the above, this Court is of the considered view that the impugned charge framed against the petitioner under section 7 of the Prevention of Corruption Act does not deserve any interference and the same is upheld. 11. Consequently, present revision stands dismissed.