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2017 DIGILAW 1170 (RAJ)

Jitendra Kumar S/o Magnaram v. State of Rajasthan

2017-05-08

VIJAY BISHNOI

body2017
ORDER : Mr. Vijay Bishnoi, J. 1. This criminal revision petition under section 397 read with section 401 CrPC has been filed by the petitioner being aggrieved with the order dated 04.02.2017 passed by Special Judge (Prevention of Corruption Act Cases), Pali (for short ‘the trial court’ hereinafter) in Case No.46/2015, whereby it has ordered for framing of charges against the petitioner for the offences punishable under sections 7, 13(1)(d) and 13(2) of Prevention of Corruption Act, 1988 (for short ‘the Act of 1988’ hereinafter). 2. Brief facts of the case are that complainant Mangal Singh filed a complaint dated 09.12.2009 to the Deputy Superintendent, Anti Corruption Department, Sirohi alleging that in order to get electricity connection on his well for agricultural purpose, he applied in the Electricity Department 2-3 years ago. It is contended that a demand for the said electricity connection was raised by the Electricity Department in June, 2009 and the complainant had deposited an amount of Rs.21,510/- for that purpose. It is alleged that despite completing all formalities, when the electricity connection was not released, he met with A.En. Jagdish Kataria for the same but he demanded bribe of Rs.10,000/- for providing him electricity connection. The complainant has stated that he does not want to give bribe to Jagdish Kataria and, therefore, he is filing this complaint. On receiving the said complaint, the Anti Corruption Department had verified the same and after due verification has proceeded further. 3. As per the prosecution, the demand of bribe is verified and the A.En. Jagdish Kataria has settled the matter for Rs.9,000/- and he has asked the complainant to handover the said bribe of Rs.9,000/- to the concerned clerk Bhanwar Singh. A trap was laid by the Anti Corruption Department and two independent witnesses were summoned. 18 currency notes of Rs.500 denomination each were smeared with phenolphthalein powder and given to the complainant Mangal Singh with instruction to handover the same to the accused. The complainant thereafter reached the office of the A.En. Jagdish Kataria, who came out from the office and sit in his jeep and proceeded to somewhere but after going to some distance, he stopped the jeep and asked the complainant to sit in the jeep. The complaint then sit in the jeep driven by A.En. The complainant thereafter reached the office of the A.En. Jagdish Kataria, who came out from the office and sit in his jeep and proceeded to somewhere but after going to some distance, he stopped the jeep and asked the complainant to sit in the jeep. The complaint then sit in the jeep driven by A.En. Jagdish Kataria and on his asking handed over Rs.9000/- to the petitioner Jitendra Kumar, who was also travelling in the said jeep. It is contended that after handing over the bribe money to Jitendra Kumar, the complainant had signaled the officials of the Anti Corruption Department, who thereafter followed the jeep in which A.En. Jagdish Kataria and the petitioner were travelling and stopped it and asked about the bribe money. At the instance of the petitioner, the bribe money was recovered from the underneath of the matting of the seat of the jeep. During the course of investigation, the petitioner Jitendra Kumar had offered an explanation that he had received Rs.9000/- from the complainant on the instructions of A.EN. Jagdish Kataria. 4. The police has arrested the petitioner and A.En. Jagdish Kataria and completed the investigation with the conclusion that the petitioner and Jagdish Kataria are guilty for commission of offence under section 7, 13(1)(d) and 13(2) of the Act of 1988. After receiving prosecution sanction from the competent authority, the police has filed charge-sheet against the petitioner for the aforesaid offences before the trial court. 5. The trial court after hearing counsel for the parties has framed the charges against the petitioner and A.En. Jagdish Kataria for the offences punishable under sections 7, 13(1)(d) and 13(2) of the Act of 1988 vide impugned order. It is informed that one of the accused Bhanwar Singh died during investigation, therefore, investigation against him was dropped. Being aggrieved with the same, the petitioner has preferred this revision petition. 6. Learned counsel for the petitioner has argued that from the complaint and the transcription of the conversation made between the complainant and A.En. Jagdish Kataria, it is clear that there was no demand of bribe on the part of the petitioner at any point of time. Being aggrieved with the same, the petitioner has preferred this revision petition. 6. Learned counsel for the petitioner has argued that from the complaint and the transcription of the conversation made between the complainant and A.En. Jagdish Kataria, it is clear that there was no demand of bribe on the part of the petitioner at any point of time. It is argued by the learned counsel for the petitioner that in the absence of any demand by the petitioner, no charge can be framed against him for the offences punishable under sections 7, 13(1)(d) and 13(2) of the Act of 1988 as demand of illegal gratification is necessary for constituting the aforesaid offences. In support of above argument, reliance is placed on B.Jayaraj v. State of A.P., 2014 Cr.L.R. (SC) 445 and M.R. Purushotham v. State of Karnataka, 2015 R.Cr.D. 197 (SC). 7. It is also contended that as a matter of fact the petitioner was not aware about any demand of bribe by Jagdish Kataria from the complainant and even he was not aware that the money received by him, on the instructions of Jagdish Kataria, from the complainant is bribe money. It is further contended that the petitioner was a fellow traveller in the jeep driven by Jagdish Kataria, who is the superior officer of him and on his asking he received Rs.9000/- from the complainant without having any knowledge that the said money given by the complainant is the bribe money. Learned counsel for the petitioner has, therefore, prayed that from the entire material collected by the police, it is clear that there is no evidence against the petitioner to connect him with the commission of offence punishable under sections 7, 13(1)(d) and 13(2) of the Act of 1988. It is argued that in the absence of any evidence against the petitioner, no charge can be framed. In support of above arguments, reliance is placed on decision of Hon’ble Supreme Court rendered in Union of India (UOI) v. Prafulla Kumar Samal & Anr., AIR 1979 SC 366 , State of M.P. v. Mohanlal Soni, (2000) 6 SCC 338 . 8. Per contra, learned Public Prosecutor has argued that the petitioner had received the bribe money from the complainant and the same was recovered at his instance and, therefore, it cannot be said that the petitioner is not connected with the commission of crime. 8. Per contra, learned Public Prosecutor has argued that the petitioner had received the bribe money from the complainant and the same was recovered at his instance and, therefore, it cannot be said that the petitioner is not connected with the commission of crime. It is also argued that the conduct of the petitioner of putting the bribe money underneath the matting of the seat of the jeep is suspicious as there was no occasion for him to hide the bribe money if he was not aware about the same. Learned Public Prosecutor has, therefore, prayed that prima facie evidence of commission of crime for the offences under sections 7, 13(1)(d) and 13(2) of the Act of 1988 is available against the petitioner and as such the trial court has not committed any illegality in framing the charges for the said offences. 9. Heard learned counsels for the rival parties and perused the charge-sheet, photostat of which is produced by the learned counsel for the petitioner. 10. It is not in dispute that in the complaint as well as the transcription of conversation took place between the complainant and the A.En. Jagdish Kataria, there is no mention of petitioner at any point of time, however, as per the statement of complainant Mangal Singh when he was walking down towards Kalandri Bus Stand, A.En. Jagdish Kataria came from behind in the jeep and after going at some distance, he stopped the jeep and asked him to sit in the jeep. On his asking the complainant sit on rear side of the jeep and asked about his work and the bribe money, then A.En. Jagdish Kataria had signaled him to handover it to the petitioner, who was sitting besides A.En. Jagdish Kataria on the front side of the jeep. 11. From the said statement, it can be gathered that when the complainant asked the A.En. Jagdish Kataria for the bribe money, he signaled him to give it to the petitioner. It is not believable that the petitioner sitting besides Jagdish Kataria in the jeep did not listen to the conversation took place between the complainant and the A.En. Jagdish Kataria regarding bribe money. Hence, after listening the said conversation, if the petitioner had accepted the bribe money from the complainant though on his instructions from A.En. Jagdish Kataria, it cannot be said that the petitioner had no knowledge of the crime. 12. Jagdish Kataria regarding bribe money. Hence, after listening the said conversation, if the petitioner had accepted the bribe money from the complainant though on his instructions from A.En. Jagdish Kataria, it cannot be said that the petitioner had no knowledge of the crime. 12. Apart from that the other witnesses in whose presence, the trap proceedings were concluded have also verified that the complainant had informed the raid party that he has handed over the bribe money to the petitioner on asking of A.En. Jagdish Kataria and the petitioner has received the same. 13. It is also to be noticed that as per the prosecution story when the complainant had approached the A.En. Jagdish Kataria at his office, then he was asked by him to wait for him outside his office and thereafter he along with the petitioner and other persons came out of the office and proceeded in the jeep towards Kalandri Bus Stand, where the complainant was walking down. After moving to some distance, A.En. Jagdish Kataria stopped the jeep and asked the complainant to sit in the jeep and thereafter in the moving jeep the complainant had handed over the bribe money to the petitioner on the instruction of A.En. Jagdish Kataria. The petitioner or A.En. Jagdish Kataria did not offer any explanation that at that time, where they were proceeding in the jeep and from this it appears that the petitioner along with A.En. Jagdish Kataria went in the jeep only to collect the bribe money from the complainant. 14. It is also not in dispute that the bribe money of Rs.9000/- was recovered at the instance of the petitioner from the underneath of matting of the seat of the jeep on which the petitioner was sitting. 15. The trial court has rightly raised suspicion about the conduct of the petitioner of putting the bribe money underneath the matting of the seat of the jeep, where he was sitting. Had the petitioner was not having any knowledge about the bribe money in natural course, he would have put the said money in his pocket or purse and not underneath the matting of the seat of the jeep. 16. Looking to the above noted facts and circumstances, it cannot be said that there is no basis for framing the charges against the petitioner for the offences under sections 7, 13(1)(d) and 13(2) of the Act of 1988. 16. Looking to the above noted facts and circumstances, it cannot be said that there is no basis for framing the charges against the petitioner for the offences under sections 7, 13(1)(d) and 13(2) of the Act of 1988. 17. The Hon’ble Supreme Court in B.Jayaraj v. State of A.P. (supra) has held as under: “7. In so far as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma v. State of A.P., (2010) 15 SCC 1 and C.M. Girish Babu v. C.B.I., (2009) 3 SCC 779 .” (Emphasis supplied) 18. As discussed earlier, it is unbelievable that after hearing the conversation between the complainant and A.En. Jagdish Kataria the petitioner had not sensed that money given by the complainant to him is bribe money. Moreover, the judgments of Hon’ble Supreme Court in B. Jayaraj v. State of A.P. and M.R. Purushotham v. State of Karnataka (supra) were passed in appeals against conviction and not dealing with the stage of framing of charge. 19. There is no quarrel about the law laid down by the Hon’ble Supreme Court in the judgments rendered in Union of India (UOI) v. Prafulla Kumar Samal & Anr. and State of M.P. v. Mohanlal Soni, wherein it is held that the court is required to evaluate the material and documents on record with a view of finding out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence at the time of framing of charge. At the same time, the Hon’ble Supreme Court in Union of India (UOI) v. Prafulla Kumar Samal & Anr. has held as under: “10. At the same time, the Hon’ble Supreme Court in Union of India (UOI) v. Prafulla Kumar Samal & Anr. has held as under: “10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power 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: (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” (Emphasis supplied) In State of M.P. v. Mohanlal Soni (supra), the Hon’ble Supreme Court has held as under: “7. The crystallised judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.” 20. The crystallised judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.” 20. As observed earlier in the present case, in the noted circumstances, it is clear that the petitioner had accepted the bribe money from the complainant though at the instance of A.En. Jagdish Kataria but at this stage, it cannot be ascertained whether the petitioner was not having knowledge about the demand and taking of bribe money by A.En. Jagdish Kataria and the same can only be ascertained after taking into consideration the evidence, which is to be produced by the prosecution as well as the defence during the course of trial. At present, the material placed before the trial court raises grave suspicion against the petitioner and, therefore, the trial court is fully justified in framing charges against him vide impugned order. 21. In view of the above discussions, I do not find any merit in this revision petition and the same is, therefore, dismissed.