Ashutosh Kumar Singh @ Ashutosh Kumar Singh v. State of Jharkhand through A. C. B.
2022-09-15
GAUTAM KUMAR CHOUDHARY
body2022
DigiLaw.ai
JUDGMENT : The instant revision petition has been filed against the order dated 31.05.2022 passed by the learned Special Judge, Vigilance (ACB), Palamau at Daltonganj in Vigilance Case No. 32 of 2017 whereby and whereunder, the petition for discharge filed by the petitioner has been rejected. 2. The prosecution case in brief is that one Shankar Paswan was injured in a scuffle and he was referred by Kharaundi Police Station, to the Community Health Centre for treatment. There he was examined by Ashutosh Kumar Singh (petitioner herein). The petitioner did not send the injury report and demanded a bribe of Rs.10,000/- for sending the said report to the police station. 3. A complaint was filed in this regard before the A.C.B., Palamau and FIR was registered on 19.09.2017 against the petitioner under Sections 7, 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the P.C. Act) and a trap team was constituted after completing all the procedures and raid was conducted in the house of the petitioner in which Rs.5000/- was demanded by him and he was caught red handed with the said amount. 4. After investigation, the A.C.B. submitted the charge sheet and cognizance was taken under Sections 7, 13(2) read with Section 13(1)(d) of the P.C. Act. Against the said order of cognizance, the petitioner moved this Court in Cr. M.P. No. 2860 of 2018 for quashing of the cognizance without success. 5. The instant revision petition has been preferred on the following grounds: I. There is non-application on the point of grant of sanction by the competent authority which is against the ratio laid down in Mansukhlal Vithaldas Chauhan Vs. State of Gujarat { (1997) 7 SCC 622 and State of Karnataka Vs. Ameerjan { (2007) 11 SCC 273 }; II. On 20.09.2017 a pre trap memorandum was prepared in presence of the officers in between 4 A.M and 5 A.M. On the very same day between 4:00 a.m. to 5:00 a.m. a pre trap memorandum was prepared in Vigilance Case No. 31 of 2017 which comprised of the same members of the trap team. The pre trap memorandum of G.C. Note was prepared in presence of the members of the raiding team from 4:00 a.m. to 5:00 a.m. on 20.09.2017 at Palamau.
The pre trap memorandum of G.C. Note was prepared in presence of the members of the raiding team from 4:00 a.m. to 5:00 a.m. on 20.09.2017 at Palamau. It was not physically feasible that in both these cases that they could have conducted for which pre trap memorandum was completed simultaneously in the same time. 6. It is submitted by learned counsel for the petitioner that the date on which trap was laid, raid was conducted on 20.09.2017 and apprehended Rajiv Kumar Ranjan at 7:15 a.m. in A.C.B. P.S. Case No. 28 of 2017 under Nagar Untari police station in the district of Garhwa and on the same day at 9:45 a.m. this petitioner was apprehended at 9:30 a.m. in A.C.B. P.S. Case No. 29 of 2017 under Community Head Centre, Bhavnathpur. 7. It is argued that as per post trap memorandum, after the arrest of Rajiv Kumar Ranjan he was taken to the police station which is at a distance of 75km. from A.C.B., Palamau. Against this background, it is not possible that after the arrest of said Rajiv Kumar Ranjan and taking him to the A.C.B., Palamau from there, the trap team could have reached to Bhawnathpur police station at 9:00 O’clock as per the post trap memorandum which is at a distance of 90km. from A.C.B. police station. It is further submitted that very foundation of allegation of not furnishing the injury report does not have a sound factual basis because the FIR was registered six months after that day, regarding the incidence. Unless the FIR is registered, the question of furnishing injury report does not arise. Although the alleged demand was made on 29.05.2017 but the complaint has been filed on 18.09.2017. The complainant was not even examined by this petitioner rather the complainant was treated by Dr. Nitesh Bharti. 8. It is submitted by learned A.P.P. appearing for the A.C.B. that unless the prosecution witnesses are given opportunity to explain, any adverse inference cannot be taken at this stage. This is the question of trial which can be raised and only the raiding party can explain it. 9. The ground that is being taken in the instant revision for the discharge of the accused is beyond the purview of consideration at this stage.
This is the question of trial which can be raised and only the raiding party can explain it. 9. The ground that is being taken in the instant revision for the discharge of the accused is beyond the purview of consideration at this stage. Law is settled that at the time of framing of charge the court concerned has to consider the materials collected during investigation to see whether offence is made out on the basis of the materials on record. The probative value or the intrinsic worth of these materials is not be examined at this stage. It has been argued at length that there has been non-application of mind on the point of sanction. This issue cannot be raised at the present stage. It has been held in CBI v. Ashok Kumar Aggarwal, (2014) 14 SCC 295 that the question of validity of sanction can be left open for consideration by the trial court and giving liberty to the appellant to raise the issue concerning validity of sanction order in the course of trial. 10. Further, the other points regarding the implausibility of raid cannot be considered at this stage, they are part of the defence which the accused is at liberty to raise at the stage of trial. It shall be profitable to refer to some of the authorities on the law regarding framing of charge, wherein it has been held that the scope of adjudication at this stage is a limited one and the court cannot enter into a mini trial. State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 16. All the decisions, when they hold that there can only be limited evaluation of materials and documents on record and sifting of evidence to prima facie find out whether sufficient ground exists or not for the purpose of proceeding further with the trial, have so held with reference to materials and documents produced by the prosecution and not the accused. The decisions proceed on the basis of settled legal position that the material as produced by the prosecution alone is to be considered and not the one produced by the accused. The latter aspect relating to the accused though has not been specifically stated, yet it is implicit in the decisions. It seems to have not been specifically so stated as it was taken to be a well-settled proposition.
The latter aspect relating to the accused though has not been specifically stated, yet it is implicit in the decisions. It seems to have not been specifically so stated as it was taken to be a well-settled proposition. This aspect, however, has been adverted to in State Anti-Corruption Bureau v. P. Suryaprakasam [1999 SCC (Cri) 373] where considering the scope of Sections 239 and 240 of the Code it was held that at the time of framing of charge, what the trial court is required to, and can consider are only the police report referred to under Section 173 of the Code and the documents sent with it. The only right the accused has at that stage is of being heard and nothing beyond that. (emphasis supplied) The judgment of the High Court quashing the proceedings by looking into the documents filed by the accused in support of his claim that no case was made out against him even before the trial had commenced was reversed by this Court. It may be noticed here that learned counsel for the parties addressed the arguments on the basis that the principles applicable would be same — whether the case be under Sections 227 and 228 or under Sections 239 and 240 of the Code. M.P. v. Rakesh Mishra, (2015) 13 SCC 8 However, it would suffice to say that the law on this point is crystal clear that only charge-sheet along with the accompanying material is to be considered at the stage of framing of charges, so as to satisfy whether a prima facie case is made out. It has to be the subjective satisfaction of the court framing charges. I do not find any illegality, incorrectness or impropriety in the impugned order. The points being raised do constitute part of the defence which can be raised during trial. At this stage, there are sufficient materials for framing of charge. The revision petition accordingly stands rejected.