Ashok S/O Ganapat Kolte And Anr vs The State Of Maharashtra And ...
2016 Latest Caselaw 5211 Bom

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           IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                 
                      BENCH AT AURANGABAD




                                         
               CRIMINAL APPLICATION No.6451 OF 2015

    1. Ashok s/o. Ganapati Kolte,
       Age - 52 years, Occ. Service
       (Under Suspension), 




                                        
       r/o. Deogiri Vally, Mitmita,
       Room No.42,
       Aurangabad




                                       
    2. Madhav s/o. Gyanoba Mamilwad,
       Age - 52 years, Occ. Service
       (Under Suspension),
       r/o. Vyankatadri Apt.,
       H.No.14, Nanded
                               ig            ..Petitioners
                             
                  Vs.

    1. The State of Maharashtra,
      

       (Through the Secretary),
       Home Department, 
   



       Mantralaya, Mumbai - 32

    2. The Police Inspector,
       Bhagyanagar Police Station,





       Nanded

    3. Ganapti s/o. Satwaji Ahire,
       Age-42 years, Occ. Service,
       Anti Corruption Bureau,





       Nanded                                ..Respondents

                             --
    Mr.B.R.Waramaa, Advocate for petitioners

    Mr.D.R.Kale, APP for respondent nos.1 and 2
                             --




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                            CORAM : S.S. SHINDE AND




                                                                        
                                    SANGITRAO S. PATIL, JJ. 
                      RESERVED ON : AUGUST 30, 2016      




                                               
                    PRONOUNCED ON : SEPTEMBER 08, 2016 


    JUDGMENT (PER SANGITRAO S. PATIL, J) :

The applicants have prayed for quashing

of the First Information Report ("F.I.R.", for

short) on the basis of which Crime No.28 of 2015

has been registered against them in Bhagyanagar

Police Station, Nanded for the offences punishable

under Sections 7, 12 and 15 of the Prevention of

Corruption Act, 1988 ("P.C. Act", for short).

2. It is alleged that one Ganpati Mohite and

others, who were relatives of the complainant

viz:- Nandkumar Dakhore, were connected with Crime

No.29 of 2015 for the offences punishable under

Sections 326, 323, 504, 506, 34 of the Indian

Penal Code ("I.P.C.", for short) registered in

Police Station, Chudawa, Sub-Division Purna. The

offence punishable under Section 307 came to be

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added therein subsequently. They were apprehending

their arrest in connection with that crime.

Investigation into that crime was assigned to the

present applicant no.1 i.e. A.P.I. - Kolte.

Applicant no.2, being Police Head Constable, had

recorded the supplementary statement of the

informant in that crime, on the basis of which

offence punishable under Section 307 of the I.P.c.

came to be added and as such, he also was

assisting applicant no.1 in investigating the

crime.

3. Nandkumar Dakhore complained with the

office of Anti Corruption Bureau, Nanded

("A.C.B.", for short) on 24.09.2015, alleging

inter-alia that the application for pre-arrest

bail filed by one of the accused in Crime No.29 of

2015 namely, Ganpati Wamanrao Mohite was rejected

by the Court and that the present applicants

contacted him (i.e.Nandkumar Dakhore) and demanded

bribe of Rs.50,000/- for avoiding arrest of

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Ganpati Mohite and for giving a reply favourable

to him in the High Court in the application for

pre-arrest bail. The complainant Nandkumar Dakhore

had no inclination to pay the bribe amount to the

applicants, however, he showed his willingness to

pay them under the belief that if the bribe is not

paid, the applicants would arrest Ganpati Mohite

and would not extend any help to him. On receiving

that complaint, the informant namely, Ganpat

Ahire, Police Inspector, A.C.B., Nanded arranged

for laying a trap. However, prior to going to lay

the trap, he decided to verify the demand of bribe

from the applicants. Accordingly, on 24.09.2015 at

about 3.27 p.m., the complainant Nandkumar Dakhore

called applicant no.2 on the Mobile phone, on

which both the applicants had talks with the

complainant Nandkumar Dakhore and asked him to

meet at Nanded Near Taroda Naka, which place was

subsequently changed to Chhatrapati Chowk, Purna

Road, Nanded and then, to the Western Gate of

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Pawde Petrol Pump, near Wamanrao Pawde Mangal

Karyalaya, Purna Road, Nanded. Accordingly, the

complainant Nandkumar Dakhore met them. At that

time, both of them demanded the amount of

Rs.50,000/- from him for avoiding arrest of

Ganpati Mohite and to extend him help in getting

the relief of pre-arrest bail from the High Court

by filing a reply in his favour. After

negotiations, the said amount was reduced to

Rs.40,000/-. The complainant Nandkumar Dakhore

assured them to arrange for that amount and

accordingly, the applicants as well as the

complainant left that place. A panchnama in

respect of verification of the demand of bribe by

the applicants came to be prepared on 24.09.2015.

4. The complainant Nandkumar Dakhore went to

the office of A.C.B. on 29.09.2015 with the amount

of Rs.40,000/-. The informant i.e. P.I. Ahire made

necessary preparation for laying the trap and

prepared the pre-trap panchnama. The complainant

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Nandkumar Dakhore contacted applicant no.1 on

phone twice asking him as to where he should come

to pay the amount of Rs.40,000/-.

5. It is stated that the applicants

suspected of the proposed trap by the A.C.B. and

therefore, they did not respond the complainant

Nandkumar Dakhore. On 07.10.2015, the complainant

Nandkumar Dakhore had an occasion to meet

applicant no.1 in the funeral of one Kisanrao

Desai at Chudawa. At that time, the complainant

Nandkumar Dakhore asked applicant no.1 as to when

he would be coming to Nanded whereon applicant

no.1 told that he did not want money and would

help Ganpati Mohite. Thus, the trap failed.

6. On the basis of the demand of bribe made

by the applicants, the informant P.I. Ahire

lodged a report against the applicants in

Bhagyanagar Police Station, Nanded on the basis of

which, Crime No.28 of 2015 came to be registered

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against the applicants on 19.10.2015 for the

offences punishable under Sections 7, 12 and 15 of

the P.C. Act.

7. The learned Counsel for the applicants

submits that Section 15 of the P.C. Act is not at

all attracted to the facts of the present case,

because it relates to an attempt to commit the

offence referred to in Clause (a) or (d) of sub-

Section (1) of Section 13 of the P.C. Act. He

further submits that mere demand for bribe would

not constitute an offence punishable under Section

7 of the P.C. Act. He further submits that it is

not clarified as to who is the principal accused

and who is the abettor out of the present

applicants. He submits that the above numbered

crime has been registered against the applicants

with a view to harass them. A total false report

has been lodged against them. He, therefore,

submits that the F.I.R. on the basis of which, the

above numbered crime has been registered, may be

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quashed and set aside. He relies on the ratio laid

down in the cases of (1) Narendra Champalal

Trivedi Vs. State of Gujarat, 2012(4)Mh.L.J.(Cri.)

434 and A. Sivaprakash Vs. State of Kerala, AIR

2016 SC 2287.

8. On the other hand, the learned A.P.P. for

respondent nos.1 and 2 submits that mere demand

for bribe is sufficient to constitute an offence

punishable under Section 7 of the P.C. Act.

Applicant no.2 abetted and assisted applicant no.1

in demanding the bribe from the complainant -

Nandkumar Dakhore. Only because the applicants

suspected that a trap is likely to be laid against

them by the A.C.B., they did not go ahead with

their demand and consequently, the trap failed. He

submits that the contents of the report lodged by

the informant P.I. Ahire, the complaint of

Nandkumar Dakhore, the panchnama prepared in

respect of the first demand of the applicants and

the pre-trap panchnama, prima facie, disclose the

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offences punishable under Sections 7 and 12 of the

P.C. Act against the applicants. He, therefore,

submits that the application may be rejected.

9. From the contents of the report, it is

prima facie clear that the applicants were

investigating Crime No.29 of 2015 registered

against one Ganpati Mohite and others for the

offences punishable under Sections 326, 323, 504,

506 read with Section 34 of the I.P.C. in Police

Station, Chudawa, Tq.Purna. The copies of the bail

orders passed by the learned Addl. Sessions Judge,

Parbhani in Criminal M.A. Nos.660 of 2015 and 757

of 2015 show that except one Ganpati Mohite, other

accused persons were extended the relief of pre-

arrest bail. The said accused persons were

relatives of the complainant Nandkumar Dakhore. As

seen from the contents of the report, the

applicants approached the complainant Nandkumar

Dakhore and demanded bribe of Rs.50,000/- for

avoiding arrest of Ganpati Mohite and to

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facilitate him in getting pre-arrest bail from the

High Court. Prior to laying of the trap on the

applicants, it was decided to verify the demand of

bribe made by the applicants. The contents of the

report, prima facie, show that the demand for

bribe made by the applicants was confirmed and it

was found that after negotiations, the amount of

bribe was reduced from Rs.50,000/- to Rs.40,000/-.

Accordingly, the panchnama came to be prepared.

10. As per Section 7 of the P.C. Act,

whoever, being, or expecting to be a public

servant, accepts or obtains or agrees to accept or

attempts to obtain from any person, for himself or

for any other person, any gratification whatever,

other than legal remuneration, as a motive or

reward for doing or forbearing to do any official

act or for showing or forbearing to show, in the

exercise of his official functions, favour or

disfavour to any person or for rendering or

attempting to render any service or disservice to

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any person, with the Central Government or any

State Government or Parliament or the Legislature

of any State or with any local authority,

Corporation or Government company referred to in

clause (C) of Section 2, or with any public

servant, whether named or otherwise, shall be

liable to be punished. It is, thus, clear that

even after a public servant agrees to accept or

attempts to accept from any person any illegal

gratification, he can be said to have committed

offence punishable under Section 7 of the P.C.

Act. It is not necessary to actually accept the

illegal gratification for constituting the offence

punishable under Section 7 of the P.C. Act.

11. In the present case, the trap failed,

because after confirmation of the demand for bribe

from the side of the applicants suspecting that

there would be a trap, the applicants are stated

to have decided not go ahead with their demand and

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did not extend the complainant Nandkumar Dakhore

an opportunity to hand over the amount of bribe to

them in response to their earlier demand.

Consequently, there was no question of recovery of

bribe amount from them. Applicant no.2, prima

facie, seems to have aided, assisted and thus,

abetted applicant no.1 in demanding the bribe

amount. As such, there is sufficient material on

record to show prima facie involvement of the

applicants in the offences punishable under

Section 7 and 12 of the P.C. Act.

12. In the case of Narendra (supra) cited by

the learned Counsel for the applicants, it is

observed in paragraph 12 that mere recovery of the

tainted money is not sufficient to record

conviction unless there is evidence that bribe has

been demanded or money has been paid as bribe.

This observation would be certainly applicable

against a public servant for the offence

punishable under Section 13(a) and (d) of the P.C.

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Act. In the present case, the applicants have not

been connected under any of these clauses of

Section 13 of the P.C. Act. Consequently, the

above-mentioned preposition of law would not be

helpful to the applicants to claim discharge and

seek quashment of the F.I.R. lodged against them.

13. The learned Counsel for the applicants

further cited a judgment in the case of

Sivaprakash (supra), which pertains to the offence

punishable under Section 13(1)(d)(ii) of the P.C.

Act. This offence has no relevance in the present

case. Therefore, the said judgment also would be

of no help to the applicants.

14. So far as the offence punishable under

Section 15 of the P.C. Act is concerned, we find

substance in the contention of the learned Counsel

for the applicants that in the absence of the

allegations disclosing offence punishable under

Section 13(1)(a) or (d) of the P.C. Act, the

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provisions of Section 15 would not be attracted.

In the present case, the applicants have not been

connected with the offence punishable under

Clauses (a) or (d) of sub-Section (1) of Section

13 of the P.C. Act. Hence, the F.I.R. lodged

against them for the offence punishable under

Section 15 of the P.C. Act, is liable to be

quashed. In the above circumstances, the

Application is liable to be allowed partly and

accordingly, allowed partly with the following

order:-

(i) The F.I.R. to the extent connecting the

applicants with the offence punishable under

Section 15 of the P.C. Act, 1988, is quashed and

set aside.

(ii) The prayer of the applicants to quash and

set aside the F.I.R. in respect of the offences

punishable under Sections 7 and 12 of the P.C.

Act, 1988, is rejected.

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    (iii)          The application stands allowed partly.




                                            
                                           
    [SANGITRAO S. PATIL, J.]              [S.S. SHINDE, J.]




                                         
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