Prakash Kumar Sinha vs Central Bureau Of Investigation
2023 Latest Caselaw 8472 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 16
 

 
Case :- CRIMINAL REVISION No. - 91 of 2023
 

 
Revisionist :- Prakash Kumar Sinha
 
Opposite Party :- Central Bureau Of Investigation
 
Counsel for Revisionist :- Naved Ali
 
Counsel for Opposite Party :- Shiv P. Shukla
 

 
Hon'ble Subhash Vidyarthi,J.

1. Heard Sri Naved Ali, the learned counsel for the applicant/revisionist and Sri Shiv P. Shukla, the learned counsel appearing on behalf of Central Bureau of Investigation.

2. The instant revision petition has been filed under Section 397 read with Section 401 of Code of Criminal Procedure challenging the validity of the order dated 18.11.2022, passed by the learned Special Judge, CBI, Court No.4, Lucknow in Criminal Case No.712 of 2018, titled CBI Vs. Nishant Yadav and another, rejecting the application for discharge of the revisionist under Section 227 of Cr.P.C.

3. Briefly stated, the facts of the case are that on 08.02.2018, the complainant-Shivaji Prajapati had sent a complaint to the CBI stating that he had applied to Poorvanchal Bank, Ghanti Branch, District Deoria for a loan of Rs.2,00,000/- and that on 03.02.2018 the Branch Manager co-accused Nishant Yadav had asked him to pay Rs.20,000/- as bribe for getting the loan sanctioned.

4. The C.B.I. has submitted a charge sheet against the revisionist  and the co-accused Nishant Yadav under Sections 120-B I.P.C. and Section 7 and 13 (ii) read with 13 (i) (d) of Prevention of Corruption Act, 1988.

5. The charge sheet states that the revisionist-Prakash Kumar Sinha was working as a Field Officer in the aforesaid Branch, he had visited the site and had recommended sanctioning of the loan in favour of the complainant. The charge sheet further states that a trap was set up, a team of CBI along with witnesses went near the Bank, the complainant went inside the bank, he went inside the cabin of the Branch Manager who demanded bribe of Rs.15,000/- and upon the complainant's request he agreed to accept Rs.14,000/- and he directed the complainant to keep the amount in the drawer of his table. The complainant had put the tainted bribe amount of Rs.14,000/- in the drawer of the office table of the co-accused Nishant Yadav, Branch Manager. The tainted amount was recovered from the drawer of the co-accused in presence of the witnesses.

6. The revisionist-applicant has filed an application for discharge under Section 227 of Cr.P.C. stating that initially the case was registered against the co-accused Nishant Yadav and an unknown person and it is utterly unbelievable that the revisionist had demanded bribe from the complainant and yet the complainant did not know the revisionist's name. It has further been stated that there is no evidence regarding any demand and acceptance of bribe amount by the revisionist.

7. A supplementary affidavit has been filed on behalf of the revisionist-applicant annexing therewith a copy of the transcript of conversation between the complainant and co-accused Nishant Yadav and some conversation between the complainant and the revisionsit. The transcript indicates that the complainant had told the revisionist that the Manager had asked him to pay it to him only, to which the revisionist replied that the Manager only will receive it but when the complainant again asked him that the Manager was asking for it and he would receive it, what should the complainant do, the revisionist replied that the complainant should give it to the Manager or to him. The revisionist asked as to whether the Manager had asked for Rs.15,000/-, whereupon the complainant stated that yes he was asking for Rs.15,000/- and whether it can't be reduced? To this, the revisionist replied that the complainant should request the Manager at the time of making the payment. When the complainant asked as to whether the revisionist would not ask the Manager to reduce the amount, the revisionist replied that the complainant may pay Rs.1,000/- less. In reply to a subsequent question the complainant specifically said that the revisionist had demanded money and without denying it the revisionist merely said that the file would be prepared by the Manager.

8. In another conversation between the complainant and the co-accused-Manager Nishant Yadav, the co-accused asked the complainant to pay something to the revisionist, the revisionist was asking him to reduce the amount. He had said that the deal was settled for Rs.15,000/- and that the complainant might reduce it by Rs.1,000/-.

9. Mr. Naved Ali, the learned counsel for the revisionist has submitted that the complainant had filed the complaint against the Manager only and he had not levelled any allegation against the revisionist regarding the charge of committing offence of criminal conspiracy He has further submitted that the demand and acceptance of bribe are sine qua non for attracting the provisions of Section 7 of the Prevention of Corruption Act and as there is no allegation and evidence of any demand and acceptance of bribe by the revisionist, the revisionist cannot be tried for the aforesaid charges. He has further submitted that even as per the averments made in the charge sheet the applicant had visited the site and had recommended sanctioning of the loan and he had not refrained from performing his duties and in these circumstances, the charge of demand of bribe is unsustainable.

10. Mr. Naved Ali, has further submitted that the offence of entering into a criminal conspiracy is not a substantive offence and when the primary charge of committing an offence under Section 7 of Prevention of Corruption Act is not made out against the applicant, he cannot be made to face trial for a mere charge under Section 120-B I.P.C.

11. Learned counsel for the revisionist-applicant has relied upon judgment of Hon'ble Supreme Court in the case of State through Central Bureau of Investigation Vs. Dr. Anup Kumar Srivastava: (2017) 15 SCC 560, in which the Hon'ble Supreme Court has held as under:

"25. Framing of charge is the first major step in a criminal trial where the court is expected to apply its mind to the entire record and documents placed therewith before the court. Taking cognizance of an offence has been stated to necessitate an application of mind by the court but framing of charge is a major event where the court considers the possibility of discharging the accused of the offence with which he is charged or requiring the accused to face trial. There are different categories of cases where the court may not proceed with the trial and may discharge the accused or pass such other orders as may be necessary keeping in view the facts of a given case. In a case where, upon considering the record of the case and documents submitted before it, the court finds that no offence is made out or there is a legal bar to such prosecution under the provisions of the Code or any other law for the time being in force and there exists no ground to proceed against the accused, the court may discharge the accused. There can be cases where such record reveals the matter to be so predominantly of a civil nature that it neither leaves any scope for an element of criminality nor does it satisfy the ingredients of a criminal offence with which the accused is charged. In such cases, the court may discharge him or quash the proceedings in exercise of its powers under the provisions.

31. We have no doubt to hold that in Call No. 48, the respondent herein was not at all in picture and even in Call No. 51 he was talking to Hemant Gandhi but it is not proved that they were talking about the same raid as they have used certain other cryptic codes as mentioned above which makes the Call highly improbable for connecting the respondent herein in commissioning of the offence. Even otherwise, in Call No. 51, the benefit of doubt must go to the respondent herein where the language of the call is dubious and no logical understanding of the actual conversation can be drawn. Further, in the absence of any details with regard to the amount of ''six zero', we are of the view that Call No. 48 categorically brings out that the respondent herein did not  have any knowledge of the alleged criminal conspiracy and Call No. 51 is also unable to prove the complicity of the accused in the crime because of its out of the context conversation. In view of the above, we are of the considered opinion that Call Nos. 48 and 51, heavily relied upon by the prosecution, lack object and purpose to prove the complicity of the respondent herein in the crime."

12. The learned counsel for the revisionist has also relied upon another judgment of Hon'ble Supreme Court in the case of Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi): 2022 SCC Online SC 1724, wherein the Hon'ble Apex Court has held as follows:

"2. However, the Court, vide order dated 28.02.2019, highlighted a number of judgments, such as Kishan Chand Mangal vs. State of Rajasthan, (1982) 3 SCC 466; Hazari Lal vs. State (Delhi Administration), (1980) 2 SCC 390; and M. Narsinga Rao vs. State of A.P., (2001) 1 SCC 691, wherein this Court, despite the absence of primary evidence of the complainant, sustained the conviction of the accused by relying on other evidence, and raising a presumption under the statute.

74. What emerges from the aforesaid discussion is summarised as under:

(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and(ii) of the Act.

(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.

(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.

(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:

(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.

(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and (ii) of the Act.

(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and inturn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act.

(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.

(f) In the event the complainant turns ''hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.

(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13 (1) (d) (i) and (ii) of the Act.

(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature."

13. Per contra, Mr. Shiv P. Shukla, learned counsel representing the Central Bureau of Investigation has vehemently opposed the revision application. He has submitted that it is recorded in the charge-sheet that the conversations between the complainant and the accused person recorded in a micro SD card installed in a digital voice recorder revealed the demand of bribe on the part of the accused persons. The transcript of conversation has been annexed by the applicant himself along with supplementary affidavit. Whether or not the aforesaid evidence is sufficient to support the charges against the applicant, has to be decided by the learned trial court after scrutinizing the evidence that would be led during trial. The sufficiency of evidence cannot be scrutinized while deciding an application under Section 227 of Cr.P.C.

14. Sri Shukla has placed reliance upon a decision of Hon'ble Supreme Court in the case of State of Rajasthan Vs. Ashok Kumar Kashyap: 2021 SCC Online SC 314: (2021) 11 SCC 191, in which the Hon'ble Supreme Court has held as under:

11. While considering the legality of the impugned judgment [Ashok Kumar Kashyap v. State of Rajasthan, 2018 SCC OnLine Raj 3468] and order passed by the High Court, the law on the subject and few decisions of this Court are required to be referred to.

11.1. In P. Vijayan [P. Vijayan v. State of Kerala, (2010) 2 SCC 398], this Court had an occasion to consider Section 227 CrPC What is required to be considered at the time of framing of the charge and/or considering the discharge application has been considered elaborately in the said decision. It is observed and held that at the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. It is observed that in other words, the sufficiency of grounds would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him. It is further observed that if the Judge comes to a conclusion that there is sufficient ground to proceed, he will frame a charge under Section 228 CrPC, if not, he will discharge the accused. It is further observed that while exercising its judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts.

11.2. In the recent decision of this Court in M.R. Hiremath [State of Karnataka v. M.R. Hiremath, (2019) 7 SCC 515] , one of us (D.Y. Chandrachud, J.) speaking for the Bench has observed and held in para 25 as under : (SCC p. 526)

"25. The High Court [M.R. Hiremath v. State, 2017 SCC OnLine Kar 4970] ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In State of T.N. v. N. SureshRajan [State of T.N. v. N. Suresh Rajan, (2014) 11 SCC 709 : (2014) 3 SCC (Cri) 529 : (2014) 2 SCC (L&S) 721] , adverting to the earlier decisions on the subject, this Court held : (SCC pp. 721-22, para 29)

''29. ... At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.' "

* * *

15. As observed hereinabove, the High Court was required to consider whether a prima facie case has been made out or not and whether the accused is required to be further tried or not. At the stage of framing of the charge and/or considering the discharge application, the mini trial is not permissible. At this stage, it is to be noted that even as per Section 7 of the PC Act, even an attempt constitutes an offence. Therefore, the High Court has erred and/or exceeded in virtually holding a mini trial at the stage of discharge application.

16. We are not further entering into the merits of the case and/or merits of the transcript as the same is required to be considered at the time of trial. Defence on merits is not to be considered at the stage of framing of the charge and/or at the stage of discharge application.

15. When we examine the facts and circumstances of the instant case in the light of the above referred law laid down by Hon'ble the Supreme Court, it appears that although the revisionist is not named in the F.I.R., from the transcript of the conversations between the co-accused and the informant and the conversations between the revisionist and the informant, it prima facie appears that the revisionist and the co-accused Nishant Yadav were acting as accomplices in demanding and accepting the bribe from the informant. The revisionist negotiated the bribe amount and he reduced it from Rs.15,000/- to Rs.14,000/-. The revisionist did not deny a specific statement made by the complainant during the conversations with the revisionist that the revisionist had demanded money from him. Therefore, there is prima facie material to indicate the involvement of the revisionist in demanding and accepting bribe from the informant which is sufficient for trying the revisionist for commission of the alleged offence. Whether or not the material collected by the prosecution is sufficient or not, is not to be examined by the trial court while deciding the application under Section 227 of Cr.P.C.

16. Learned trial court has rightly rejected the revisionist's application under Section 227 of Cr.P.C. by observing that at the stage of framing of charges, the court should not analyze the sufficiency of evidence to support the charges and this has to be done during trial. At this stage, the court is required only to examine whether there are sufficient grounds for trial of the accused persons and not whether there is sufficient evidence to hold the accused guilty.

17. I do not find any illegality in the order dated 18.11.2022, passed by the learned Special Judge, CBI, Court No.4, Lucknow rejecting the application under Section 227 of Cr.P.C. for discharge of the revisionist.

18. The revision lacks merit and the same is accordingly dismissed.

(Subhash Vidyarthi, J.)

Order Date :- 23.3.2023

Ram.