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Gujarat High Court · body

2019 DIGILAW 262 (GUJ)

Silvestar Khandas Mackwan v. State Of Gujarat

2019-03-26

A.P.THAKER

body2019
JUDGMENT : A P Thaker, J. This application has been filed by the applicant under Section 482 of the Criminal Procedure Code to quash and set aside the FIR being C.R. No.I-13 of 2009 registered with Agathala Police Station for the offences punishable under Section 384 read with Section 114 of the Indian Penal Code and under Section 7, 13(1)D and 13(2) of the Prevention of Corruption Act and the order dated 20.05.2015 passed below application Exhibit 3 in Special (A.C.B.) No.55 of 2012 by the learned Special Judge (A.C.B.), Palanpur, whereby the learned Special Judge has rejected the application of the applicant for discharging him from the offence as alleged. 2. The applicant herein has contended that the alleged offence has been registered against him and charge-sheet has been filed before the learned Special Judge wherein it was registered as Special Case (A.C.B.) No.55 of 2012. He has contended that he has filed discharge application at Exhibit 3, which came to be rejected by the learned Special Judge, Palanpur. According to him, by incorporating two offences, one FIR has been lodged. He has contended that for one offence, he and his writer have been shown as accused and for another incident, Mr.J. D. Katara has been shown as accused No.2 in the same case. According to him, at the relevant time, he was Dy. S. P., S.C./S.T. Cell, Palanpur and at that time, he was investigating one FIR which was registered as C.R.No.I-16 of 2007 for the offence under Sections 302, 376 of the Indian Penal Code and under Section 3(2)(v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter be referred to as "the Atrocity Act") and, thereafter, he has arrested the accused therein who is respondent No.2 herein was produced before the learned Judicial Magistrate, First Class, Deesa and he has prayed for remand, but the same was rejected by the learned Judicial Magistrate, First Class. He has contended that respondent No.2 has applied for bail before the learned Additional Sessions Judge, which came to be rejected by the Sessions Court. He has contended that respondent No.2 has applied for bail before the learned Additional Sessions Judge, which came to be rejected by the Sessions Court. He has contended that during the pendency of the investigation, however, he fall ill, the same came to be handed over to the Deputy Superintendent of Police and after thorough investigation, the charge-sheet was filed against respondent No.2 for the offence under Sections 318 and 376 of the Indian Penal Code and under Section 3(2)(v) of the Atrocity Act and as no offence was found to be committed by other eight accused, no charge-sheet was filed and, therefore, the further investigation was handed over to other police officer. He has contended that meanwhile, the trial of the said offence was commenced and respondent No.2 applied for bail before the High Court which came to be rejected by the High Court. Thereafter, respondent No.2 has filed an application through jail stating that during investigation, the present applicant has demanded bribe and accepted the bribe amount of Rs.60,000/- and on that basis, the FIR came to be registered in April 2009. He has contended that during the investigation of such FIR relating to receiving the bribe amount, no evidence regarding mobile phone calls, tower location has been collected by the Investigating Officer and no panchnama, where Rs.60,000/- was paid, has been prepared by the Investigating Officer and no necessary evidence was collected and without collecting sufficient evidence, the charge-sheet has been filed against him for the alleged offence as narrated hereinabove. He has contended that even the statements of commando of the applicant as well as driver have not been recorded by the Investigating Officer and no scientific evidence has been collected by the Investigating Officer. According to the applicant, in absence of such evidence, prima facie, it cannot be held that the applicant has demanded and accepted Rs.60,000/- as bribe amount from respondent No.2 herein, during the investigation of the earlier complaint for which respondent No.2 is in jail. He has contended that no proper sanction has been given for prosecution and in absence of all these materials, no charge-sheet could have been led before the trial Court. He has contended that the learned Additional Sessions Judge has also not considered this aspect while deciding his application for discharge at Exhibit 3. He has contended that no proper sanction has been given for prosecution and in absence of all these materials, no charge-sheet could have been led before the trial Court. He has contended that the learned Additional Sessions Judge has also not considered this aspect while deciding his application for discharge at Exhibit 3. According to him, learned Special Judge mechanically rejected his application without taking into consideration this vital aspects of the matter. He has contended that in absence of such evidence, no prudent man can connect him with the alleged offence of bribe. Accordingly, he has prayed to allow this application by quashing and setting aside the order of the learned Special Judge and also quashing and setting aside the FIR filed under Section 384 read with Section 114 of the Indian Penal Code and under Section 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act against him. 3. Heard Mr.Silvestar Mackwan, party-in-person, Ms.Moxa Thakkar, learned Additional Public Prosecutor for respondent No.1 -State and Mr.S. L. Vaishya, learned advocate for respondent No.2 at length. 4. The party-in-person has submitted the same facts which are narrated in the application. He has submitted that there were two incidents alleged to have been occurred regarding demand of bribe and acceptance of the bribe by two different officers and both incidents have been incorporated in one charge-sheet only. He has referred to the FIR and other papers and submitted that there is narration of different places of giving amount to writer of the present applicant as stated by two different witnesses. He has submitted that there is allegation that Rs.60,000/- was being counted by the complainant in his house, but no panchnama of that house has been prepared by the Investigating Officer. He has submitted that Mr. Balvantsing Darbar has not said anything that he has paid the amount. He has submitted that no call details has been collected by the Investigating Officer regarding conversation with the various persons. He has submitted that the complaint has been written in jail and that too, after rejection of his bail application by this Court. He has also referred to the FIR and submitted that the incident regarding Mr.J. D. Katara is also mentioned, but, with that incident, he has nothing to do and common charge-sheet has been filed by the Investigating Officer. He has also referred to the FIR and submitted that the incident regarding Mr.J. D. Katara is also mentioned, but, with that incident, he has nothing to do and common charge-sheet has been filed by the Investigating Officer. He has submitted that there is no witness showing payment of money to Mr. Javansing. He has submitted that when respondent No.2 was produced before the learned Judicial Magistrate, First Class, he has not made any grievance or complaint regarding payment of such amount and it is made after passage of long time. He has referred to the sanction at page no.88 and submitted that wrong version has been given in the said sanction. 4.1 Party-in-person has submitted that before arresting the accused, he has already informed D.S.P., at the relevant time and after getting necessary sanction, he arrested the accused. He has also submitted that misleading fact is given to the higher authority for getting sanction by the concerned Investigating Officer. He has also referred to the various statements and submitted that nobody has stated that Javansing is other person there and he has referred to Mahetusinh who is in no.3 and submitted that for further statement, the time is changed and place is different as stated by the complainant and there is no averments regarding payment of Rs.60,000/-. He has submitted that the charge is not framed, till today, and there are so many lapses in the investigation, which will ultimately not beneficial to the prosecution and ultimately, would be resulted into futile exercise by the concerned Court. He has submitted that no statements of the doctor, gunman, driver and policemen were recorded. According to him, these all are important witnesses and yet Investigating Officer has not recorded the statements of these witnesses. It is his submission that in absence of such statements of witnesses, no prosecution could be launched against him. He has relied upon the decision in the case of State of M.P. Vs. Sheetla Sahai and others, (2009) Supp AIR SC 1744. 5. Per contra, Ms. Moxa Thakkar, learned Additional Public Prosecutor for respondent No.1 -State has submitted that at the time of framing of the charge, only prima facie material is required to be seen and there is no infirmity in the order passed by the learned Special Judge in rejecting the application of the applicant for discharge. 5. Per contra, Ms. Moxa Thakkar, learned Additional Public Prosecutor for respondent No.1 -State has submitted that at the time of framing of the charge, only prima facie material is required to be seen and there is no infirmity in the order passed by the learned Special Judge in rejecting the application of the applicant for discharge. While referring to the statements of the witnesses, she has submitted that statement of Metusinh Thakor has completely supported the case and he has seen his father calculating currency note of Rs.500/-. She has submitted that the complaint has been filed through the jail and Metusinh's statement is also supported that Javansinh had visited the house of the complainant and the son of the complainant has also gone to drop him on his motorcycle. She has submitted that after collecting necessary evidence, charge-sheet has been filed and there is prima facie case against the present applicant. She has submitted that whatever points are raised by the present applicant is a matter of evidence and he can put it in his defence before the trial Court. She has submitted that the learned Special Judge has rightly rejected the application and there is no infirmity in the impugned order and the FIR cannot be cancelled, at this stage. She has prayed to dismiss the application. 6. Mr.S. L. Vaishya, learned advocate for respondent No.2 has submitted that the complaint, which is, filed is correct one and the present applicant has demanded money from him which has been specifically mentioned in the FIR and the same has been supported by the statement of his son and in this case, the complainant is victim and it is not a stage to discharge the present applicant. He has submitted that the evidence is required to be led by the prosecution. He has submitted that the grounds which have been raised by the applicant in this application may be agitated before the trial Court by putting necessary question to the concerned witness and he can put it as his defence thereof. He has submitted that the learned Special Judge has not committed any error of fact and law in rejecting the application of the applicant and, therefore, this application may also be dismissed. 7. Regarding framing of the charge, the Supreme Court in the case of State of M.P. Vs. He has submitted that the learned Special Judge has not committed any error of fact and law in rejecting the application of the applicant and, therefore, this application may also be dismissed. 7. Regarding framing of the charge, the Supreme Court in the case of State of M.P. Vs. Sheetla Sahai (supra), relied upon by the applicant, has held and observed in para-59 as under:- 59. In this case, the probative value of the materials on record has not been gone into. The materials brought on record have been accepted as true at this stage. It is true that at this stage even a defence of an accused cannot be considered. But, we are unable to persuade ourselves to agree with the submission of Mr. Tulsi that where the entire materials collected during investigation have been placed before the court as part of the charge-sheet, the court at the time of framing of the charge could only look to those materials whereupon the prosecution intended to rely upon and ignore the others which are in favour of the accused. The question as to whether the court should proceed on the basis as to whether the materials brought on record even if given face value and taken to be correct in their entirety disclose commission of an offence or not must be determined having regard to the entirety of materials brought on record by the prosecution and not on a part of it. If such a construction is made, sub-section (5) of Section 173 of the Code of Criminal Procedure shall become meaningless. The prosecution, having regard to the right of an accused to have a fair investigation, fair inquiry and fair trial as adumbrated under Article 21 of the Constitution of India, cannot at any stage be deprived of taking advantage of the materials which the prosecution itself has placed on record. If upon perusal of the entire materials on record, the court arrives at an opinion that two views are possible, charges can be framed, but if only one and one view is possible to be taken, the court shall not put the accused to harassment by asking him to face a trial. 8. In the aforesaid decision, the Supreme Court has also referred to the decision in the case of Public Interest Litigation and another Vs. 8. In the aforesaid decision, the Supreme Court has also referred to the decision in the case of Public Interest Litigation and another Vs. Union of India and another, (2005) 8 SCC 202 wherein the Supreme Court has held and observed in paras-9, 10 and 11 as under:- "9. The protection given under Section 197 is to protect responsible public servants against the institution of possibly vexatious criminal proceedings for offences alleged to have been committed by them while they are acting or purporting to act as public servants. The policy of the legislature is to afford adequate protection to public servants to ensure that they are not prosecuted for anything done by them in the discharge of their official duties without reasonable cause, and if sanction is granted, to confer on the Government, if they choose to exercise it, complete control of the prosecution. This protection has certain limits and is available only when the alleged act done by the public servant is reasonably connected with the discharge of his official duty and is not merely a cloak for doing the objectionable act. If in doing his official duty, he acted in excess of his duty, but there is a reasonable connection between the act and the performance of the official duty, the excess will not be a sufficient ground to deprive the public servant from the protection. The question is not as to the nature of the offence such as whether the alleged offence contained an element necessarily dependent upon the offender being a public servant, but whether it was committed by a public servant acting or purporting to act as such in the discharge of his official capacity. Before Section 197 can be invoked, it must be shown that the official concerned was accused of an offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is not the duty which requires examination so much as the act, because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. The act must fall within the scope and range of the official duties of the public servant concerned. It is the quality of the act which is important and the protection of this section is available if the act falls within the scope and range of his official duty. There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty, nor is it possible to lay down any such rule. One safe and sure test in this regard would be to consider if the omission or neglect on the part of the public servant to commit the act complained of could have made him answerable for a charge of dereliction of his official duty. If the answer to this question is in the affirmative, it may be said that such act was committed by the public servant while acting in the discharge of his official duty and there was every connection with the act complained of and the official duty of the public servant. This aspect makes it clear that the concept of Section 197 does not get immediately attracted on institution of the complaint case. 10. Use of the expression "official duty" implies that the act or omission must have been done by the public servant in the course of his service and that it should have been in discharge of his duty. The section does not extend its protective cover to every act or omission done by a public servant in service but restricts its scope of operation to only those acts or omissions which are done by a public servant in discharge of official duty. 11. If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed." 9. 11. If on facts, therefore, it is prima facie found that the act or omission for which the accused was charged had reasonable connection with discharge of his duty then it must be held to be official to which applicability of Section 197 of the Code cannot be disputed." 9. It is settled law that for considering the application petition under Section 482 of the Code, it is necessary to consider as to whether the allegations in the complaint prima facie make out a case or not and the Court is not to scrutinize the allegations for the purpose of deciding whether such allegations are likely to be upheld in trial. It is also well settled that though the High Court possesses inherent powers under Section 482 of the Code, these powers are meant to do real and substantial justice, for the administration of which alone it exists or to prevent abuse of the process of the court. The Supreme Court, time and again, has observed that extraordinary power should be exercised sparingly and with great care and caution. The High Court would be justified in exercising the said power when it is imperative to exercise the same in order to prevent injustice. 10. In view of the above settled legal position and on perusal of the factual aspect of the present case, it is an admitted fact that one complaint of alleged demand and acceptance of Rs.60,000/- by the present applicant during the course of investigation of the another offence, is lodged by the complainant i.e. respondent No.2, which was sent through jail, was investigated by the concerned investigating officer and after collecting the evidence, the charge-sheet has been filed before the trial Court. It is also an admitted fact that during the pendency of that trial, the present applicant has moved application at Exhibit 3 for his discharge from the case, which has been rejected by the learned Special Judge. 11. I have gone through the record of the case and perused the papers produced with the present application and the impugned order of the learned Special Judge. 12. It transpires from the records that while referring to the papers of the charge-sheet, the learned Special Judge was pleased to dismiss the application of the present applicant for discharge. 11. I have gone through the record of the case and perused the papers produced with the present application and the impugned order of the learned Special Judge. 12. It transpires from the records that while referring to the papers of the charge-sheet, the learned Special Judge was pleased to dismiss the application of the present applicant for discharge. Now, on perusal of the entire papers produced on record, it clearly transpires that the complainant has filed the complaint regarding corruption against the applicant herein as well as two others and the concerned investigating officer has thoroughly recorded the statements of the witnesses and has collected the evidence regarding the alleged bribe amount accepted by the applicant and as the allegation of acceptance of the bribe by two different investigating officers relating to the same case of one and the investigation of the one offence against the respondent No.2, a common charge-sheet has been filed by the prosecution. There is nothing wrong in it. If in the course of one incident / offence, several persons committed any offence at different points of time, then in that case, a common charge-sheet could be filed. In the present case, the fact is that the charge-sheet is filed by the concerned investigating officer for two incidents relating to the same transaction except allegation of bribe by two different officers at different points of time during the investigation of the case against the complainant. There is no legal infirmity in filing of common charge-sheet against the present petitioner and others. Therefore, the objection raised by the present applicant for such common charge-sheet is devoid of merits. 13. It is also pertinent to note that the submissions made by the present applicant is of a nature which could be raised during the course of recording of the evidence. The point raised by the applicant is point of defence. The applicant could place the point of defence during the trial of the special case. Whatever submissions made by the applicant regarding lapses on the part of the investigating officer is concerned, if during the trial, it found to be legally sustainable then the benefit will be given to the applicant and he would, ultimately, be acquitted from the charges levelled against him. Whatever submissions made by the applicant regarding lapses on the part of the investigating officer is concerned, if during the trial, it found to be legally sustainable then the benefit will be given to the applicant and he would, ultimately, be acquitted from the charges levelled against him. But, at this stage, the points which have been raised by the present applicant, cannot be a ground of setting aside the entire prosecution or to quash the FIR. 14. At the stage of framing of the charge, the trial Court has to look into the papers submitted with the charge-sheet and after reading the entire papers and, if any, submissions made by the defence, prima facie material is found against the accused, than the concerned trial Court can frame the charge against the accused. But, if perusing the papers of investigation, charge-sheet and the submissions of the defence, if it is found by the trial Court that there is no material to frame the charge, than the trial Court can discharge the accused. But so far as the present case is concerned, the material on which the prosecution relies is prima facie sufficient to frame the charge and the points raised by the applicant are points which can be raised as defence during the trial. 15. In view of this factual and legal aspects and on perusal of the impugned order of the learned Special Judge dated 20.05.2015, no any legal error could be found with the impugned order. Therefore, the present application is devoid of merits and is required to be dismissed. 16. For the foregoing reasons, the present application is dismissed. Rule is discharged. Interim relief, if any, granted earlier stands vacated forthwith.