society, for a senior government functionary to direct a person,
who has, suddenly, come to his residence and sought some
favour, to go and meet the subordinates? The answer has to be
an emphatic “No”. The subordinate staff, ordinarily, available at
the residential quarter is the driver. The conduct of the Subdivisional
Magistrate, in such circumstance, in asking the
informant (truck driver) to talk to the co-accused (driver of the
official vehicle), who was, at that time, at the residence of the
petitioner, was the natural thing that many other officers
similarly situated would do. The co-accused, then, demands
money for releasing the truck from the informant (truck driver).
The demand is, admittedly, not made in the presence of the
petitioner. The informant does not cross check with the
petitioner about the demand of money; instead, he goes and
pays the money to the co-accused and, then, tries to rope in
the petitioner in the offence. Nobody, in fact, made any
attempt, even a feeble attempt, to ascertain from the petitioner
if he had really demanded money, which Sanjay had claimed
from the driver of the truck in question.
16. Two possibilities, thus, arise: Firstly, the
demand is made at the behest of the petitioner. Secondly, the
driver made the demand on his own without any prodding from
the Sub-divisional Magistrate. If two possibilities exist, the one
that favours the accused has to be adopted.
17. The conduct of a Sub-divisional Magistrate in
directing the informant, who has, suddenly, entered his official
residence to consult the co-accused, a government employee,
albeit a driver, in the circumstance of this case, cannot be said
to be unnatural. Had the informant come to the office of the
Sub-divisional Magistrate and if Sub-divisional Magistrate asked
him to meet the dealing assistant and if, then, the dealing
assistant would have demanded the money and said that the
money was asked for by the petitioner, could we, by any
stretch of imagination, fasten penal liability upon the petitioner?
The answer has to be once again an emphatic „no‟.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.1000 of 2016
Dr. Jitendra Gupta,
V
State of Bihar
CORAM: HONOURABLE THE CHIEF JUSTICE
Date: 28-10-2016
Should the High Court in exercise of its powers,
under Article 226 of the Constitution read with Section 482 code
of Criminal Procedure, set aside and quash the First Information
Report (in short, FIR) as well as the investigation, which
commences pursuant to the FIR, which alleges existence of
circumstances indicating possibilities of commission of
cognizable offences? This is the basic question, which this case
has raised.
2. By making this application under Article 226 of
the Constitution read with Section 482 of the Code of Criminal
Procedure (in short, „the Code‟) the petitioner has approached
this Court seeking order (s) setting aside and quashing the FIR,
which has resulted into registration of Vigilance Police Case No.
67/2016, under Sections 7/8/13 (2) read with Section 13 (1)
(d) of the Prevention of Corruption Act, against the petitioner.
3. The First Information Report, which is under
challenge, discloses, in brief, thus:
(i) On 08.07.2016, one Jaspreet Singh, the driver
of truck No. HR-58A-9867, filed an FIR against the Subdivisional
Magistrate, Mohaniya, district-Bhabhua, alleging, inter
alia, that on 03.07.2016, in the morning hours, the SubDivisional
Magistrate, along with his men, came, in a Scorpio
vehicle and seized the documents of four vehicles including that
of the petitioner.
(ii) Thereafter, so discloses the First Information
Report, the informant went to the residential office of the Subdivisional
Magistrate and pleaded for release of the vehicles‟
documents. According to the informant, the accused/petitioner
asked him to meet his driver, Sanjay, and do what Sanjay
asked. The informant claims to have accordingly approached
Sanjay, all the vehicles belonging to one and the same owner.
(iii) The FIR alleged that Sanjay demanded a sum
of Rs. 90,000/ for release of the vehicles‟ documents. At that
time, the informant approached the Vigilance Police.
(iv) A trap was laid and the demanded money was
recovered from the possession of co-accused Sanjay, who gave
a statement that he had collected the money on behalf of the
petitioner.
(v) Based on the action taken report of the incharge
of the trap team, the Vigilance PS case got initiated. A
raid was conducted at the official residence of the
accused/petitioner and the documents of the truck were found
from a Tata sumo vehicle parked in the compound of the said
house.
4. Assailing the FIR lodged against him and the
investigation that has since been pursued, in the course of
which he was arrested, the petitioner has moved this Court
seeking issuance of writ of certiorari and/or exercise of inherent
powers of the High Court to quash the FIR and close the
investigation. The petitioner has canvassed before the High
Court that soon after taking over charge as Sub-divisional
Magistrate Mohaniya, he had taken, was instructed by the
Government, several measures to stop the illegal practice of
over loaded trucks running on the National Highway and, in the
process, he had annoyed the mafia controlling the wrong-doers
and also some policemen involved in the illegal business of
allowing over-loaded trucks to pass through since long.
According to the petitioner, the present FIR is an attempt to
frame him in false case.
5. The learned counsel for the petitioner has
submitted that it is a case of no material against the petitioner
and my attention has been drawn to the fact that it is not in
dispute that the petitioner had not directly demanded any
money from the informant or from the driver of the other three
trucks. It has been argued that primary pre-requisite of an
offence, under Section 13(1)(d) of the Prevention of Corruption
Act, is proof of demand or request for valuable thing or
pecuniary advantage from a public servant and, hence, absence
of allegation for demand goes to show that prosecution‟s case is
bound to fail.
6. Mr. S. Datta, learned Senior Counsel, appearing
for the petitioner, has argued that there is not even an
allegation that any money was paid to the petitioner inasmuch
as the prosecution‟s case is that the money was demanded and
received by the co-accused, Sanjay Tiwari. A search operation
was conducted in the house of the petitioner; but no money has
been recovered from the house. The prosecution, in fact, admit,
as is evident from the counter affidavit, that there was no
recovery of the demanded money or any portion thereof from
the possession of the petitioner. In other words, it is a case of
no demand and no recovery from the petitioner.
7. The petitioner‟s side has drawn my attention to
certain documents like gate receipts issued by the Government
of Jharkhand, which show that the truck, in question, could not
have been at the place alleged in the morning of 03.07.2016
and it has, therefore, been argued that the documents go to
show that the whole case of the prosecution is based on
falsehood and its continuance, therefore, so argued the learned
counsel, would amount to abuse of the process of the court. As
I proceed further, it would transpire that even the State
concedes no occurrence, as alleged in the FIR, had taken place
in the morning hours of 03.07.2016. The State, thus, I must
hasten to point out, admits that the alleged occurrence of
taking away of the document of the vehicle by the petitioner or
his associates is completely false.
8. The respondent No. 5, who is the investigating
officer, has filed the counter affidavit controverting the
statements made in the writ petition. The counter affidavits,
when read carefully, discloses that the case of the
respondent/prosecution is that co-accused, Sanjay Tiwari,
demanded and received the money at behest of the petitioner
and, in that context, the respondent has relied upon the
statement of the co-accused recorded, under Section 161 of the
Code of Criminal Procedure, to try and rope in the petitioner.
9. What is, perhaps, of great importance is that the
respondent has admitted that no incident of seizing truck
documents, as claimed in the First Information Report, took
place in the morning of 03.07.2016. The respondents, now,
assert that the incident of seizing the vehicles‟ documents took
place in the morning of 04.07.2016. It has been pleaded, in the
counter affidavit, that though there was incorrect mentioning of
date in the First Information Report, the statement of the
witnesses, including the informant, recorded under Section 161
of the Code of Criminal Procedure, shows that the incident
actually began in the morning of 04.07.2016. In that
background, it has been argued that mere wrong mentioning of
date in the FIR should not be a ground to stop the investigation
and close the case.
10. In other words, the edifice of the prosecution‟s
case is based on the confession of the co-accused allegedly
made to the police, whilst under investigation. Though till now,
there is no confession before the Special Judge, let us assume
that the co-accused makes the confession before a Special
Judge stating that he had made the demand and received the
money acting on the behest of the petitioner. Law is settled that
the confession of co-accused cannot be treated as substantive
evidence, in the strict sense, against the petitioner and cannot
be made foundation for conviction of the person/petitioner, who
did not make the confession.
11. The reasons for not treating the confession of a
co-accused as evidence are, broadly speaking, that the
confession of a co-accused is not given on oath. It is neither
given in the presence of the accused against whom the
confession is sought to be relied upon nor is the maker's
version tested by cross-examination. In fact, such a confession
is a much weaker type of evidence than the evidence of an
approver, for, the approver is cross-examined by the accused;
whereas the confession of a co-accused is not subjected to
cross-examination. A reference, in this regard, may be made to
Kashmira Singh Vs. The State of Madhya Pradesh (AIR
1952 SC 59), wherein the Supreme Court observed and laid
down as follows:
"the confession of an accused
person is not evidence in the ordinary sense of
the term as defined in Section 8. It cannot be
made the foundation of a conviction and can
only be used in support of other evidence. The
proper way is, first, to marshal the evidence
against the accused excluding the confession
altogether from consideration and see
whether, if it is believed a conviction could
safely be based on it. If it is capable of belief
independently of the confession, then, of
course it is not necessary to call the
confession in aid. But cases may arise, where
the Judge is not prepared to act on the other
evidence as it stands even though, if believed,
it would be sufficient to sustain a conviction.
In such an event, the Judge may call in aid the
confession and use it to lend assurance to the
other evidence and, thus, fortify himself in
believing what without the aid of the
confession he would not be prepared to accept
"
12. Thus, the above observations, made in
Kashmira Singh (supra), were in respect of Section 30 of the
Evidence Act, that is, for using the confession of a co-accused
and, hence, the decision, in Kashmira Singh (supra), becomes
relevant, when the confession of a co-accused is sought to be
used as basis for conviction. In short, Kashmira Singh’s case
(supra), lays down the law of confession of a co-accused is that
such confession stricto senso no evidence and cannot be made
foundation for the conviction of the petitioner.
13. Be that as it may, there is an allegation, albeit
a subtle one, against the informant in the FIR itself. The
informant has stated that when he approached the petitioner at
his residence for release of the vehicles, the Sub-divisional
Magistrate asked him to talk to his driver and do what the
driver says for the release. This statement of the informant,
according to Mr. Rama Kant Sharma, learned Senior Counsel,
appearing for the respondents, goes to show that the coaccused,
Sanjay Tiwari, had acted on behest of the petitioner,
while demanding and receiving money and that there is,
therefore, sufficient material against the petitioner.
14. A truck driver approaches the Sub-divisional
Magistrate of a Sub-division for release of his truck. The truck
had been seized in the morning hours. The truck driver goes
straight to the residence of the Sub-divisional Magistrate and
not to his office. The Sub-divisional Magistrate curtly asked the
truck driver (informant) to talk to Sanjay, a Grade IV employee,
and do what he says for the release of the vehicle. Sanjay is the
driver of the official vehicle of the Sub-divisional Magistrate.
Sanjay, then, demands money for release of the vehicle and
claims that money has to be given to the Sub-divisional
Magistrate. This is the prosecution version of the incident.
Taken as a whole, can one hold, in criminal law, that the
accused was the one, at whose behest, the money was
demanded by the co-accused Sanjay. On the contrary, there is
not even an iota of material to show that the accused petitioner
knew at any point of time or had come to know at any point of
time that Sanjay had demanded money, claiming the demand
to have been made by the accused petitioner.
15. Is it uncommon or even un-natural, in our
society, for a senior government functionary to direct a person,
who has, suddenly, come to his residence and sought some
favour, to go and meet the subordinates? The answer has to be
an emphatic “No”. The subordinate staff, ordinarily, available at
the residential quarter is the driver. The conduct of the Subdivisional
Magistrate, in such circumstance, in asking the
informant (truck driver) to talk to the co-accused (driver of the
official vehicle), who was, at that time, at the residence of the
petitioner, was the natural thing that many other officers
similarly situated would do. The co-accused, then, demands
money for releasing the truck from the informant (truck driver).
The demand is, admittedly, not made in the presence of the
petitioner. The informant does not cross check with the
petitioner about the demand of money; instead, he goes and
pays the money to the co-accused and, then, tries to rope in
the petitioner in the offence. Nobody, in fact, made any
attempt, even a feeble attempt, to ascertain from the petitioner
if he had really demanded money, which Sanjay had claimed
from the driver of the truck in question.
16. Two possibilities, thus, arise: Firstly, the
demand is made at the behest of the petitioner. Secondly, the
driver made the demand on his own without any prodding from
the Sub-divisional Magistrate. If two possibilities exist, the one
that favours the accused has to be adopted.
17. The conduct of a Sub-divisional Magistrate in
directing the informant, who has, suddenly, entered his official
residence to consult the co-accused, a government employee,
albeit a driver, in the circumstance of this case, cannot be said
to be unnatural. Had the informant come to the office of the
Sub-divisional Magistrate and if Sub-divisional Magistrate asked
him to meet the dealing assistant and if, then, the dealing
assistant would have demanded the money and said that the
money was asked for by the petitioner, could we, by any
stretch of imagination, fasten penal liability upon the petitioner?
The answer has to be once again an emphatic „no‟.
18. Another aspect of great significance is that the
FIR states, as already indicated above, that incident took place
in the morning of 3/7/16. The statement of the witnesses was
recorded under Section 161 of the Code. In the statement so
recorded, the witnesses maintained that the incident took place
on 03.07.2016. Recording of statements by the police at the
police of a person, acquainted with the facts of a case, is a
crucial aspect of an 'investigation', the purpose thereof being to
enable the investigating officer to analyze holistically the
materials available and, then, form an opinion as to what
offence, if any, has been made out against the accused
persons. In this context, one may refer to the observations
made by the Supreme Court, in Nandini Satpaty Vs. P. L.
Dhani (AIR 1978 SC 1025), wherein a three Judge Bench of
the Supreme Court has observed that the purpose of recording
a statement, under Section 161 of the Code, is to bring out the
maximum that the person examined knows about the incident.
19. Now, in the case at hand, the petitioner files
the writ petition and encloses some documents. These
documents make it transparent that the truck being present, at
the place claimed, is impossible. A counter affidavit is filed.
The respondent No. 5, who is the investigating officer, has
made desperate attempt to fill in the gaps and has made
statement, on oath, contrary to the record. The attempt to fill in
the gaps goes to show that the investigation is not bona fide.
20. With regard to the above, it is of paramount
importance to note that the prosecution‟s case starts with
assertion that the incident took place in the morning of
03.07.2016 and this stand has been continuously maintained till
the time the petitioner, with the help of present petition,
brought on record specific and positive materials to show that it
is impossible for the vehicle, in question, to be available at the
place where it was claimed to have been available on
03.07.2016 and having accepted this position, the Investigating
Officer has had a desperate attempt to offer his explanation on
behalf of the witnesses rather than the witnesses stating that
they made the mistake in mentioning 3rd July, 2016, as the
date of occurrence.
21. At this stage, it needs to be mentioned that
the prosecutor has relied upon the respondent side has relied
upon the decisions of the Supreme Court, in Gian Singh Vs
State of Punjab, reported in (2012) 10 SCC 303, State of
Bihar Vs P. P Sharma, reported in 1992 Supp (1) SCC 222,
and Amit Kumar Vs Ramesh Chandra, reported in (2012) 9
SCC 460, to canvass before the Court that the present case
does not call for exercise of extra-ordinary jurisdiction under
Article 226 of the Constitution read with Section 482 of the
Code.
22. In Gian Singh’s case (supra), the Supreme
Court was dealing with the relative scope and ambit of Section
320 and Section 482 of the Code and the question that the
three Judge Bench was called upon to answer was whether the
High Court has the power, under Section 482 of the Code, to
compound and close offences, which are non-compoundable.
The Supreme Court opined that Section 482 of the Code begins
with the word “nothing in this Code” and, therefore, the only
inevitable conclusion is that there is no statutory bar under the
Code, which can affect the inherent power of the High Court.
While refusing to lay down any strait jacket formula, the Court
held that to secure the ends of justice is a wholesome and
definite guideline.
23. In State of Bihar Vs P. P Sharma (supra),
the Supreme Court was dealing with a fact situation, where
charge sheet had been filed and matter was pending before the
Special Judge to decide on cognizance and at that juncture,
without waiting for the order of the Special Judge, the High
Court had exercised its extraordinary jurisdiction under Article
226 and 227 of the Constitution to quash the criminal case. In
that case, the Supreme Court observed that treating the
affidavits filed and documents produced, in the writ petition, as
evidence, was not proper and it was held that the High Court
committed serious error in putting an end to the prosecution at
its inception by going into merits in a pre-trial.
24. The fact situations of that cases, relied upon
by Mr. Sharma, learned Senior Counsel, appearing on behalf of
the respondents, is not similar to the case at hand inasmuch in
P. P Sharma (supra), investigation was complete and
Investigating Officer had filed the charge sheet under Section
173 of the Code, which had been forwarded to the Special
Judge; whereas, in the case at hand, the investigation is in
progress. In such Circumstances, the Supreme Court, as
already indicated above, observed that materials, collected by
the investigating officer, were under the gaze of the judicial
scrutiny of the Special Judge and the High Court, therefore,
ought to have waited for the Special Judge to pass the order
taking or refusing to take cognizance before exercising its
power under Article 226 of the Constitution. It was in that
background that the Supreme Court held that the High Court
could do well to discipline its action not to quash proceedings in
exercise of inherent jurisdiction, when the matter is under
judicial scrutiny of the Special judge.
25. The reliance on the case of Amit Kumar
(supra), is also totally misplaced inasmuch in Amit Kumar’s
case (supra), the High Court had interfered with the order of
the trial Judge framing charge under Section 306 IPC against
the accused person. The Supreme Court opined that framing of
charge, in a sessions triable case, is an exercise of jurisdiction
by the trial court in terms of Section 228 of the Code and if
materials exist, even if they are weaker than prima facie case,
charge can be framed. It was in such factual matrix that the
Supreme Court laid down that High court can exercise its
jurisdiction under Section 482 of the Code only when there is
palpable error by the trial court, while framing the charge
and/or when the order is perverse.
26. At this juncture, the ratio, laid down in the
case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC
335, may be profitably invoked, wherein the Supreme Court
wbile summarizing the discussion in paragraph 102, held
against clause No. 5 that 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, a case for quashing is made out. When the
improbability of events, taking place on 03.07.2016, was
brought to the notice of Court an attempt was made to change
the very date of occurrence of offence.
27. In the light of the law laid down in Bhajan Lal‟s
case (supra), it becomes clear that when the allegation, made
in the First Information Report, against the petitioner are
considered, as a whole, it becomes inherently improbable for
any prudent man to reach a just conclusion that there is
sufficient ground for proceeding against the present petitioner.
A strong case of quashing, therefore, is clearly made out by the
petitioner.
28. To put it little differently, the allegations, in
the present case, are on the face of it outlandish, because the
prosecution‟s case all along has been that the incident took
place in the morning of 03.07.2016 and from the perusal of the
statements of witnesses in the case diary, it is quite clear that
this stand has been maintained till the time the petitioner
brought on record specific materials to show that it is
impossible for the vehicle, in question, to be available at the
place, where it was claimed to have been available on
03.07.2016. Having becoming wiser after reading the writ
petition, the Investigating Officer has filed an affidavit contrary
to his own case diary and claims that the incident took place on
04.07.2016. In my considered view, these are allegations
against the petitioner, which, on the face of it, cannot be taken
seriously by any reasonable person. In short, the allegations
contained in the First Information Report, when considered, as
a whole, in the light of the materials available on record, makes
it clear that the allegations are so absurd and inherently
improbable that no prudent person can ever reach a just
conclusion that there is sufficient ground for proceeding against
the accused.
29. What, thus, is transparent is that none of the
three decisions, relied upon by the respondents helps its cause.
In fact, the Supreme Court, in Gian Singh (supra) and PP
Sharma (supra), observed that no strait jacket formula is
permissible or practical and held that High Court would exercise
its power, on the basis of the facts presented before it, to
prevent abuse of the process of the court and/or secure the
ends of justice.
30. When the facts, as alleged, remain
uncontroverted cannot lead to conviction, the trial, so far as
present petitioner is concerned, would be a futile exercise and,
hence, his prayer for quashing the FIR against him and closing
the case so far as the present petitioner is concerned. In India,
the courts would not, ordinarily, quash a criminal proceeding
merely because of the reason that at the end of the trial,
conviction of the person, facing the trial, appears impossible on
account of insufficiency of material. This restriction is, however,
not a restriction of universal application. Hence, in a given case,
it is possible to quash a criminal proceeding if, it is, on the basis
of the materials available, reasonable to reach a conclusion that
at the end of the trial, the accused would have to be acquitted.
31. Because of what has discussed and pointed out
above, this Court is clearly satisfied that the FIR and the
consequential investigation so far as the same relate to the
present petitioner are concerned, it would be nothing but abuse
of the process of Court. Necessarily, therefore, the FIR and the
investigation so far as the same relate to the present petitioner
need to be set aside and quashed.
32. In the result and for the foregoing reasons
discussed above, this writ petition succeeds and the FIR, along
with its consequential investigation, are hereby set aside and
quashed.
Pawan/-
(I. A. Ansari, CJ)
No comments:
Post a Comment