Allowed

Veer Singh Yadav v. State of Rajasthan through Pp

Rajasthan HC6 Jan 2016CRLMP/2429/2015

Case brief

AI extract

What is this about?

The High Court allowed a criminal miscellaneous petition seeking to quash an FIR under the Prevention of Corruption Act, 1988. The court held that the FIR did not disclose an offence as the prosecution failed to prove demand and acceptance of bribe under Section 13(1)(d) and the petitioner's explanation for the unexplained cash, backed by lack of disproportionate assets, negated the offence under

What did the court decide?

The criminal proceedings in pursuance to FIR No.72/2015 registered with Police Station ACB, Alwar-2 are quashed.

Veer Singh Yadav Vs State of Rajasthan through Pp — Quashing and FIR | Rajasthan HC (2016)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR

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S.B. Criminal Misc. Petition No.2429/2015

Veer Singh Yadav

Versus

State of Rajasthan

DATE OF ORDER : 6^th January, 2016 HON'BLE MR. JUSTICE M.N. BHANDARI

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Mr. Rajeev Surana, for petitioner Mr. Sudesh Saini, P.P., for the State

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By this petition, a challenge is made to the FIR No.72/2015 registered with Police Station ACB, Alwar-2.

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Learned counsel submits that petitioner had gone to Karauli on 13.04.2015 to complete urgent work. He remained there from 10.30 AM to 1.00 PM. He then proceeded to Jaipur to attend government case. The petitioner was called to give details about a file which was sent to the Minister and later on could not be traced out. After the court hours, he went to visit his nephew Manoj residing in Jaipur. He was given Rs.2.5 lacs to be delivered to the younger brother Surendra at Alwar. The petitioner proceeded to Alwar by car. The AntiCorruption Bureau (in short "ACB" ) trapped the petitioner and asked about the amount recovered from him. It was properly explained and to confirm the aforesaid, a conversation was made with Surendra. The case was yet registered against the petitioner for offence under Sections 13(1)(d)(e) & 13(2) of Prevention of Corruption Act, 1988

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(in short " the Act of 1988" ). It was in ignorance of the explanation given by the petitioner.

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Learned counsel further submits that after the trap, the ACB made a search of accused's house but nothing objectionable was found to show disproportionate assets. The prosecution even made inquiry with the revenue authorities to find out movable and immovable property of the petitioner. The Tehsildar thereupon sent a report showing no property in the name of the petitioner other than one ancestral property. Thus nothing adverse was found against the petitioner during the search and on further inquiry. The explanation of Rs.2.5 lacs was given, hence no case is made out against the petitioner.

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The prosecution otherwise suffers from malafide as it was at the instance of one subordinate officer Ramswaroop Choudhary. He was given memo by the petitioner on 06.04.2015 on account of his unauthorised absence and as he was not working properly. The said Ramswaroop Choudhary had challenged the petitioner. A false story was concocted by the said Shri Ramswaroop Choudhary. In view of the aforesaid also, malicious action of the prosecution deserves to be set aside. It is when the petitioner is having unblemished service record and is retiring in the year 2016.

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Learned Public Prosecutor, on the other hand, submits that FIR for offence under Sections 13(1)(d)(e) & 13(2) of the Act of 1988 has

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rightly been registered. The petitioner was carrying a sum of Rs.2.5 lacs. He could not explain the said amount rather the explanation given by him was not proper. The petitioner stated that the said amount was given by his nephew Manoj to be delivered to his younger brother Surendra at Alwar. On a call to Shri Surendra, he did not make conversation properly. He did not admit payment of the aforesaid sum at Jaipur for its onward receipt at Alwar. In view of the above, the petitioner could not explain the amount so recovered from him. It is however true that on a search of the house and onward inquiry from the revenue authorities, no property was found in the name of the petitioner thus FIR contains facts only about unexplained amount of Rs.2.5 lacs. So far as allegation of malafide is concerned, it is not made out.

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I have considered the submissions made by the parties and perused the record.

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The challenge to the FIR is mainly on the ground of malafide and further on the ground that facts available on record do not disclose any offence against petitioner.

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So far as allegation of malafide against Ramswaroop Choudhary is concerned, the record shows that he is subordinate of the petitioner and was served with the memo on 06.04.2015 but name of the informer has not been disclosed by the prosecution. The first ground in reference to malafides cannot be thus accepted. It is moreso

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when ACB is otherwise having right to organise trap, thus atleast their act was not malicious.

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So far as second ground is concerned, it is stated that from the FIR and the material available on record, offence under Sections 13 (1)(d)(e) & 13(2) of the Act of 1988 is not made out. To appreciate the aforesaid argument, both the provisions are quoted hereunder for

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ready reference:

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“13. Criminal misconduct by a public servant-

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(1) A public servant is said to commit the offence of criminal misconduct,-

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(d) if he,-

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(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

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(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

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(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or

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(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.

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Explanation.-For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.

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(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less

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than one year but which may extend to seven years and shall also be liable to fine."

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The question would be as to whether FIR can be quashed on the grounds urged by learned counsel for petitioner. The FIR can be quashed if it does not disclose any offence on the face of it. The Hon'ble Supreme Court has laid down the law in the case of State of Haryana & Ors. Vs. Ch. Bhajan Lal & Ors., reported in 1992 Supp (1) SCC 335 . The relevant Para 102 of the said judgment is quoted hereunder for ready reference:

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“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

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Where the allegations made in the First Information

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Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused.

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Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except

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under an order of a Magistrate within the purview of Section 155(2) of the Code.

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Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.

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Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

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Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

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The consideration of the argument has to be made as per

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judgment of the Apex Court in the case of Ch. Bhajan Lal (supra). Learned counsel for petitioner has given out that proper explanation

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was given by the petitioner and material is available on record. The amount of Rs.2.50 lacs was belonging to the brother and in confirmation to it, the Investigating Officer had called the brother on telephone. He had confirmed about the amount though conversation is not long. It is due to disturbance in the call. It is urged that once explaination is given and is available on record, the case of the petitioner falls under sub-para (3) of Para 102 of the judgment in the case of Ch. Bhajan Lal (supra). The material on record does not support the allegation made against the petitioner. The reference of various conversation made in this regard has been given though controverted by learned Public Prosecutor.

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To appreciate the argument, I have gone through the statements of the witnesses recorded during the course of investigation and other material. It is not disputed by learned Public Prosecutor that after recovery of Rs.2.50 lacs from the petitioner, when further search was made at his residence followed by inquiry by the Revenue Officer, no asset was found undisclosed. It is not in dispute that other than Rs.2.50 lacs found with the petitioner, no material exists so as to make out offence under Section 13(e) of the Act of 1988. The fact aforesaid goes in favour of the petitioner. In the background that amount of Rs.2.50 lacs was explained by him if conversation with petitioner's brother is taken into consideration apart from series of event available on record. The only objection raised by learned Public

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Prosecutor is regarding conversation with brother not so clear but based on the fact aforesaid alone, it cannot be said that petitioner failed to give explanation to the amount found with him. Explanation below Section 13(e) supports the petitioner. In view of above, I find that case of the petitioner falls under sub-para (3) of Para 102 of the judgment in the case of Ch. Bhajan Lal (supra).

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The evidence collected in support of alleged offence does not disclose the commission of offence looking to the explanation submitted by the petitioner.

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The offence under Section 13(d) is also not made out. The offence under Section 13(d) is made out when fact regarding demand and acceptance of pecuniary advantage is established. It is not available in the present case. The Apex Court recently in the case of

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P.Satyanarayana Murthy Vs. The Dist. Inspector of Police & Anr., reported in (2015) 10 SCC 152 held that for making out offence under Section 13(d), the demand as well as acceptance of bribe or ratification is a pre-condition. The relevant paras 18 to 22 and 25 are quoted hereunder for ready reference:

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“18. This Court in A. Subair vs. State of Kerala (2009)6 SCC 587, while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and

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acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.

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In State of Kerala and another vs. C.P. Rao (2011) 6 SCC 450, this Court, reiterating its earlier dictum, vis-à-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.

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In a recent enunciation by this Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj (supra) in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i)& (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d)(i)&(ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise.

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The proof of demand of illegal gratification, thus, is the gravamen of the offence underSections 7and 13(1)(d)(i)&(ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof,

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dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act.

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As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder.

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In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas vs. State of Assam (2013)12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of “may be” true but has to upgrade it in the domain of “must be” true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused."

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It is not a case where the allegation exists regarding demand and acceptance of pecuniary advantage or bribe by the petitioner. The offence under Section 13(d) is not made out even on the face of it, if the FIR is perused.

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In the light of the aforesaid, criminal misc. petition is allowed. The criminal proceedings in pursuance to the FIR No.72/2015 registered with Police Station ACB, Alwar-2 are quashed.

[M.N.BHANDARI], J.

FRBOHRA

Certificate:

“All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.”

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FATEH RAJ BOHRA, Sr. P.A.