Smt Poornima G Vs Karnataka Lokayuktha Police

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO SET ASIDE THE ENTIRE PROCEEDINGS IN SPL.C.C.NO.41/2021 PENDING ON THE FILE OF THE LEARNED 2^ND ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMKUR IN RESPECT OF THE OFFENCES PUNISHABLE UNDER SECTIONS 7(a) AND 7A OF THE PREVENTION OF CORRUPTION (AMENDED) ACT, 2018, ETC.

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THIS PETITION, COMING ON FOR FURTHER HEARING THROUGH PHYSICAL HEARING/VIDEO CONFERENCING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE M.I.ARUN

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ORAL ORDER

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1. The criminal petition is filed with the following

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prayers:-

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"i. Set aside the entire proceedings in Spl.C.C.No.41/2021 pending on the file of learned 2^nd Addl. District and Sessions Judge, Tumkur in respect of the offences punishable under Sections 7(a) and 7A of the Prevention

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of Corruption (Amended) Act, 2018.

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ii. Pass such other orders/directions as this Hon'ble Court deems fit in the circumstances of the case in the interest of justice and equity."

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The second respondent - complainant was serving as

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a Range Forest Officer and he was charged with an offence under Section 338 of the Indian Penal Code, 1860. After trial, he along with a few others, were acquitted.

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The petitioner was posted as a Public Prosecutor for the Court that acquitted the second respondent - complainant. After assuming charge, the petitioner was required to give an opinion on whether the case in which the second respondent was acquitted is a fit case for appeal or not.

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She has given an opinion on 25.02.2019 stating that it is a fit case for appeal.

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The allegation against the petitioner is that the second respondent - complainant was not aware about the petitioner having already given an opinion on 25.02.2019 and she called the second respondent in this regard and he approached the petitioner. At that time, the petitioner demanded a sum of Rs.10,000/- each from four persons including the second respondent herein for submitting a favourable report and to recommend that the case is not fit for appeal. Thereafter, a sum of Rs.20,000/- was transferred to the account of a third party at the behest of the petitioner herein. Subsequently, the second respondent approached the first respondent and registered a complaint against the petitioner and a trap was laid and the second respondent was sent to meet the petitioner along with the shadow witnesses. When they approached the petitioner, she in turn asked them to meet one Typist,

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who is accused No.2 in Spl.Case No.41/2021. The said Typist in turn directed them to pay the money to one Narasimha Murthy and the second respondent has paid a

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sum of Rs.20,000/- to the said Narasimha Murthy. At that time, the Officers of the first respondent caught the said Narasimha Murthy and both the accused including the petitioner herein. Thereafter, Special Case No.41/2021 came to be filed and the trial has commenced against the petitioner and the other accused. Presently, the trial is at its fag end and the counsel for the first respondent submits that eleven witnesses have already been examined on the side of the prosecution and only the Investigating Officer is required to be cross-examined. At this stage, this Court, by its order dated 25.09.2023, granted an interim order and the case has fallen into a limbo.

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The case of the petitioner is that the petitioner never

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received the alleged amount. It is further submitted that an unfavourable opinion against the complainant has already been submitted on 25.02.2019 and according to the case of the prosecution the demand was first raised on 01.03.2019, and the trap was laid on 29.04.2019. It is

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submitted that as the petitioner had submitted an unfavourable opinion against the interest of second respondent, out of vendetta, he has made a false complaint against the petitioner herein and by utilizing his official position and the influence that he has over the Authorities concerned, the second respondent laid a trap against the petitioner, which is nothing but an abuse of the process of law. On the said ground, it is prayed that the petition be allowed and the proceedings be quashed against the petitioner.

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Further, reliance is placed upon by the petitioner, on the judgment of this Court in W.P.No.10027/2022, wherein in paragraph No.13, it has been held as under:-

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"13. If the facts obtaining in the case at hand are considered on the bedrock of the principles laid down by the Apex Court, what would unmistakably emerge is that, there is neither demand nor acceptance in the case at hand. The demand should be for any work to be performed and acceptance should be towards the said work.The documents produced along with the petition are so unimpeachable that they would clearly demonstrate that the work that came before the petitioner on 24-022022 was performed and the document was released on the same day itself. If the complainant had complained that the petitioner had demanded money for release of

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document that would have been a circumstance altogether different. The complaint is made after 14 days of release of the document when no work was pending with the petitioner, the final trap is laid after two months of registration of the document and the petitioner is not even caught accepting any illegal gratification for him to have demanded so, two months ago. Section 7 of the Act would clearly hint at a pre-paid demand for performing a work and acceptance. There is no post-paid concept under Section 7 of the Act, that too, on a trap that is laid after two months after the alleged demand. The first trap fails and the second trap is a failure."

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Based on the aforementioned judgment, it is

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contended that the bribe for a work that had already been completed and that too when it is against the interest of

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the petitioner, the question of initiating proceedings against the petitioner for an offence under Section 7 of the Prevention of Corruption Act, 1988 (for short 'the Act'), does not arise.

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Per contra, the counsel for the respondents together submits that the evidence on record reveal that the second respondent was not aware of the work being completed. Inspite of the petitioner having already submitted an adverse report against the interest of the second respondent on 25.02.2019 itself, with the sole intention of

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illegally earning money, the petitioner contacted the

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second respondent and placed a demand for bribe which led to the trap being laid. It is submitted that the demand for a bribe, and acceptance of the same are present in the facts and that as per Section 7 of the Act it is immaterial whether the bribe is taken for the work to be completed or already completed or whether the work has been done in favour of the person from whom the bribe is demanded or it is done against the interest of such person. It is submitted what is of importance is whether there was a demand for a bribe and whether the same is accepted. It is also submitted that the trial is at its fag end and under

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the circumstances, this is not a fit case for this Court to exercise its discretion under Section 482 of the Cr.P.C. to interfere with the proceedings. For the said reason, it is prayed that the petition be dismissed.

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The respondents have relied upon the decision of the

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Hon'ble Apex Court in the case of SITA SOREN v. UNION

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OF INDIA reported in ( 2024) 5 SCC 629 . In paragraph

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No.122 of the judgment it has been held as under:-

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"122. Under Section 7 of the PC Act, the mere "obtaining", "accepting" or "attempting to obtain an undue advantage with the intention to act or forbear from acting in a certain way is sufficient to complete the offence. It is not necessary that the act for which the bribe is given be actually performed. The First Explanation to the provision further strengthens such an interpretation when it expressly states that the "obtaining, accepting, or attempting" to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by a public servant has not been improper. Therefore, the offence of a public servant being bribed is pegged to receiving or agreeing to receive the undue advantage and not the actual performance of the act for which the undue advantage is obtained."

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Reliance is also placed on the decision of the Hon'ble

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Supreme Court in the case of STATE OF ORISSA v.

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PRATIMA BEHERA reported in 2024 SCC Online SC

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3805 . In paragraph No.11 of the judgment it has been

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held as under:-

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"11. Taking note of the fact that in the case on hand, the High Court set aside the charge framed against the respondent while exercising the revisional power, it is relevant to refer to the decision in Minakshi Bala v. Sudhir Kumar. This Court on the question of quashing of charge by the High Court made the following pertinent observations:-

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"7...To put it differently, once charges are framed under Section 240 CrPC the High Court in its

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revisional jurisdiction would not be justified in relying upon documents other than those referred to in Sections 239 and 240 CrPC; nor would it be justified in invoking its inherent jurisdiction under Section 482 CrPC to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course. We hasten to add even in such exceptional cases the High Court can look into only those documents which are unimpeachable and can be legally translated into relevant evidence.

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8. Apart from the infirmity in the approach of the High Court in dealing with the matter which we have already noticed, we further find that instead of adverting to and confining its attention to the documents referred to in Sections 239 and 240 CrPC the High Court has dealt with the rival contentions of the parties raised through their respective affidavits at length and on a threadbare discussion thereof passed the impugned order. The course so adopted cannot be supported; firstly, because finding regarding commission of an offence cannot be recorded on the basis of affidavit evidence and secondly, because at the stage of framing of charge the Court cannot usurp the functions of a Trial Court to delve into and decide upon the respective merits of the case."

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It is further submitted that the judgment of the Co-ordinate Bench of this Court passed in

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W.P.No.10027/2022, relied upon by the petitioner, has

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been appealed against by the first respondent before the Apex Court and the same is pending. It is submitted that even otherwise facts of the said case varies from the facts

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of the present case and the same is not applicable to the

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instant case.

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Under the circumstances, the questions that arise for consideration by this Court are:-

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i. Whether Section 7 of Act covers an instance where a bribe is demanded and accepted for work which is already completed and that too against the interest of the person giving the bribe?

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ii. Is this a fit case for this Court to interfere by exercising its power under Section 482 of the Code of Criminal Procedure, 1973 when the trial is at its fag end?

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Section 7 of the Act reads as under:-

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"7. Offence relating to public servant being bribed.- Any public servant who,-

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(a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or

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(b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or

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(c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person,

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shall be punishable, with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.

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Explanation 1.-For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper.

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Illustration.-A public servant, 'S' asks a person, 'P' to give him an amount of five thousand rupees to process his routine ration card application on time. 'S' is guilty of an offence under this section.

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Explanation 2.-For the purpose of this section,-

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(i) the expressions "obtains" or "accepts" or "attempts to obtain" shall cover cases where a person being a public servant, obtains or "accepts" or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant;

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or by any other corrupt or illegal means;

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(ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party."

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Thus, as per Section 7, an act by which a public

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servant obtains or accepts or attempts to obtain an undue advantage from any person for doing a official work by

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himself or through some other Officer, amounts to an offence. In the process, the amount can be obtained by

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the public servant directly by himself or it can be paid to

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someone else at the behest of the said public servant.

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The onus, no doubt is on the prosecution to establish the

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same. Further, perusal of clauses (a), (b) and (c) makes it clear the gratification may be towards the work already

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done or yet to be done. Further, Explanation 1 to the Section clarifies irrespective of whether the work has been

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done or not, demanding and accepting the gratification constitutes an offence. The Section does not distinguish between the work done in favour of the bribe-giver or

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done against him. What is sought to be punished is obtaining or accepting or attempting to obtain the illegal gratification. The result is immaterial. The allegation in the instant case is that the petitioner hid from the second respondent the fact of submitting an opinion adverse to his interest and then tried to obtain a bribe by misleading the second respondent that she is yet to give the opinion and upon him and others paying the bribe, she would give a favourable opinion. The offence in the instant case is demanding and accepting the bribe. The fact of legal opinion being given against the interest of the petitioner is immaterial. No doubt, the onus of proving the same lies upon the prosecution.

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The judgment rendered by a Co-ordinate Bench of

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this Court in W.P.No.10027/2022 which is relied upon by the petitioner, in my opinion, is not applicable to the present case, because the observations made therein while interpreting Section 7 pertain to the facts and circumstances of the said case and the entire scope of

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Section 7 of the Act has not been analysed in the said

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case. Further, when there is a conflict between the decision of the Apex Court and this Court, the decision of the Apex Court will have to be followed by this Court. A bare reading of Section 7 of the Act and paragraph No.122

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of the judgment of the Apex Court in Sita Soren case, makes it amply clear that as to when the work was done either prior to demanding the illegal gratification or thereafter is immaterial.

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It is also submitted that the trial is already at its fag end and it is for the trial Court to examine the evidence let in before it and on facts it has to come to a conclusion as

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to whether the petitioner is guilty of the offence alleged or

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not. Under the given peculiar facts and circumstances of the case, I am of the opinion, it is not a fit case for this Court to exercise its discretion at this juncture.

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For the aforementioned reasons, the petition is hereby dismissed .

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It is hereby made clear that the observations made hereinabove are only for the purposes of disposing of this case and the trial Court will decide the special case pending before it based on the evidence let-in without being influenced by any of the observations made herein above.

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Pending interlocutory applications, if any, stand disposed of.

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SD/(M.I.ARUN) JUDGE

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VMB

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List No.: 1 Sl No.: 12

Smt Poornima G v. Karnataka Lokayuktha Police

Case brief

What is this about?

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Smt Poornima G v. Karnataka Lokayuktha Police

Case brief

What is this about?

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