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Rajasthan High Court · body

2022 DIGILAW 2791 (RAJ)

Vikas Kumar Bairwa v. State Of Rajasthan

2022-11-21

BIRENDRA KUMAR

body2022
JUDGMENT S.B. Criminal Miscellaneous (Petition) No. 1973/2022 1. This petition under Section 482 Cr.P.C. has been brought for quashing of FIR No. 10/2020 registered with Anti Corruption Bureau, Jaipur for the offence under Section 7, 7-A of the Prevention of Corruption Act (in short "the Act") and under Section 120B of the Indian Penal Code. 2. The challenge is on the ground that since wife of the petitioner was Chairman of the Municipality, due to political rivalry with the former Chairman, a false and concocted FIR has been lodged just to malign the image and reputation of his wife as well as of the petitioner. The petitioner has further asserted that the preliminary inquiry conducted before commencement of the FIR was mere formality and not consistent with the requirements stated in Lalita Kumari v. Govt. of U.P. & ors., reported in (2014) 2 SCC 1 . 3. According to FIR, one Vikash Kumar Bairwa, a contractor in the PWD Department lodged complaint with Anti Corruption Bureau on 29.11.2021 stating therein that in pursuance of the Government Work Order, after acceptance of tender of the complainant, work was assigned by order dated 10.11.2020. After completion of the work within time, the complainant was running from pillar to post for clearance of his pending bill. The Chairman Smt. Sonia Soni, prepared a running bill in favour of the complainant of Rs. 3,01,915.82/-. When the complainant went to the office of Municipality, the petitioner who is husband of the Chairman and was mainly dealing with the work of the Chairman, called on different dates for 3-4 months for payment of bill amount. Ultimately, the Chairman and the petitioner asked the complainant to pay 10% of the bill amount for getting clearance of the bill. It is further stated that the bribe money for the petitioner was being received by co-accused Prem Mali, who was also a contractor in the same Department. The complainant stated that since he does not want to pay bribe to the named persons, hence the complaint. On receipt of the complaint, the Anti Corruption Bureau on different dates mentioned in the FIR verified the talk between the complainant and the accused persons which revealed that the petitioner had asked the complainant to meet Mr. Yogendra Gautam @ Manu, a contractual employee and to pay Rs. 25,000/- which was 10% of the due bill amount of 2,50,000/-. On receipt of the complaint, the Anti Corruption Bureau on different dates mentioned in the FIR verified the talk between the complainant and the accused persons which revealed that the petitioner had asked the complainant to meet Mr. Yogendra Gautam @ Manu, a contractual employee and to pay Rs. 25,000/- which was 10% of the due bill amount of 2,50,000/-. On 10.1.2022, on being asked by ACB, the complainant produced 30 notes of 500 denomination to the ACB which was to be paid to Prem Chand Mali and the remaining 5,000/- was to be paid after clearance of the bills. Chemicals were put on those notes. On 12.1.2022 along with the complainant and independent witness, the ACB Team proceeded for trapping the accused. The complainant by sign identified Mr. Premji and thereafter, the handbag containing Rs. 15,000/- was handed over to Premji. Premji disclosed his name as Prem Chand Mali. On being inquired from Prem Chand Mali, he replied that since he had supplied building material to the complainant, the money was paid by the complainant as cost of that material. Mr. Yogendra @ Monu stated to the ACB Team that the petitioner had asked him to attend the complainant and get Rs. 25,000/- for ensuring payment of his pending bills. Monu further stated that though he was not involved in the said deal, however since he was a contractual employee, he acted on the command of the petitioner who is husband of the Chairman. Thereafter the ACB Team verified the records of the pending bill. The bill was prepared by the Accountant on 18.11.2021 and was endorsed by his immediate superior to the Chairman on 9.12.2021, since then the file was pending before the Chairman. The report submitted by the ACB dated 10.10.2022 to this Court regarding progress of the investigation would show that the investigation is almost complete. The petitioner and his wife appeared before the Investigation Wing. Both were jointly and separately interrogated and involvement of the petitioner along with Yogendra @ Monu and Prem Chand Mali was found true. 4. Learned counsel for the petitioner submits that since the Chairman who was the main person to pass the bill has been exonerated by the ACB, there is serious doubt on the claim of involvement of the petitioner and others. 4. Learned counsel for the petitioner submits that since the Chairman who was the main person to pass the bill has been exonerated by the ACB, there is serious doubt on the claim of involvement of the petitioner and others. Moreover, the petitioner was nowhere present at the time of trap nor any other cogent material is there against the petitioner, therefore, the impugned FIR needs to be quashed which has been lodged as vendetta at the instigation of the former Chairman. 5. Learned counsel appearing for the ACB contends that nothing has been brought on record to substantiate the allegation that the FIR is result of political vendetta. During investigation, the witnesses have stated that the petitioner was doing the work for and on behalf of Chairman who was wife of the petitioner. Learned counsel next contends that even abetment of any offence under the Act is punishable under Section 12 of the Act irrespective of the fact whether or not that offence was committed in consequence of that abetment. Learned counsel has drawn attention of the Court to the provisions of Section 7A of the Act for his contention that if anyone attempts to bribe the public servant, he is within the mischief of the offence under Section 7A of the said Act. Learned counsel next contends that mini trial is not permissible under Section 482 Cr.P.C to reappreciate the available evidence to come to a contrary conclusion. 6. On careful consideration of the materiel on record, this Court is of the view that cognizable offence is disclosed against the petitioner also, hence the FIR cannot be quashed. Accordingly, this petition stands dismissed as devoid of merit. 7. At this stage, learned counsel for the petitioner relying on the judgment of the Supreme Court in Siddharth v. State of U.P. & anr. reported in (2022) 1 SCC 676 , submits that the Hon'ble Supreme Court has categorically examined the provisions of Cr.P.C specially Section 170 Cr.P.C and held that it is not a condition precedent in all cases to arrest the accused before submission of the charge-sheet. Personal liberty is an important aspect of our constitutional mandate. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. Thus, a distinction must be made between the existence of the power to arrest and the justification for exercise of it. Personal liberty is an important aspect of our constitutional mandate. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. Thus, a distinction must be made between the existence of the power to arrest and the justification for exercise of it. In normal and ordinary course the police should always avoid arresting a person and sending him to jail, if it is possible for the police to complete the investigation without his arrest and if every kind of co-operation is provided by the accused to the Investigating Officer in completing the investigation. It is only in cases of utmost necessity, where the investigation cannot be completed without arresting the person, for instance, a person may be required for recovery of incriminating articles or weapon of offence or for eliciting some information or clue as to his accomplices or any circumstantial evidence, that his arrest may be necessary." 8. In the case on hand, it is evident that the petitioner is co- operating with the investigation and the police has not resorted to arrest the petitioner uptil now. It is also evident that investigation against the petitioner is almost complete and the police, under misconception of fact that in this petition some stay order was passed, has not submitted charge-sheet against the petitioner. It is therefore directed that the police shall not arrest the petitioner till submission of the charge-sheet which must be submitted at the earliest to the Court. After submission of the charge-sheet, the petitioner would appear before the Court within 30 days of the charge-sheet or take legal recourse for bail failing which the court concerned shall proceed according to law to secure attendance of the accused. S.B. Criminal Miscellaneous (Petition) No. 2182/2022