Prakash S/O Murlidhar Bhishikar vs State Of Maharashtra Thr. Dy. ...
2017 Latest Caselaw 3225 Bom

 CRA 68.13.odt                                1
     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR

        CRIMINAL REVISION APPLICATION NO.68 OF 2013


 Prakash s/o Murlidhar Bhishikar,
 Aged about 70 years,
 Occupation-Retired,
 Resident of Plot No.260,
 "Parmanand", West High Court Road,
 Nagpur.                            ..                              Applicant

                               .. Versus ..


 State of Maharashtra, through
 Deputy Superintendent of Police,
 Anti-Corruption Bureau, Buldhana.                 ..         Non-Applicant


                      ..........
 Shri S.S. Voditel, Advocate for Applicant,
 Shri A.M. Balpande, APP for Non-Applicant.
                      ..........

                               CORAM : KUM. INDIRA JAIN, J.

DATED : JUNE 15, 2017.

ORAL JUDGMENT

This application is directed against the order dated

25.9.2012 passed below Exh.128 by the learned Special

Judge, Buldhana in Special Anti Corruption Case No.6/2003

thereby rejecting the application for discharge preferred by

applicant/accused.

2] The facts giving rise to criminal revision

application may be stated, in brief, as under :

(i) Applicant was working as Collector,

Buldhana from 1993 to 1996. On 8.12.1994, elections to

Maharashtra Legislative Assembly were declared. Applicant

was nominated as Election Officer, Buldhana.

(ii) The Election Commission had directed all

the Election Officers to videograph all the events of election

proceedings and for the said purpose to appoint three

videographers in each legislative constituency. The

videographers were to be provided video cassettes by the

administration.

(iii) On 8.12.1994, after elections were

announced, applicant on 12.12.1994 issued advertisement

in the local newspaper inviting tenders to videograph

election proceedings as directed by the Election

Commission. The tenders were to be opened on 17.12.1994.

The Chief Election Commissioner held meetings at Jalgaon

between 12.12.1994 to 17.12.1994. During meetings,

Election Officers were directed to appoint ten videographers

to each constituency instead of three, as directed earlier.

Therefore, tenders invited by applicant could not be opened

on 17.12.1994 but were opened on 30.12.1994. On opening

the tenders, work of videograph was given to M/s. Fortune

Communications, Pune as bid quoted by M/s. Fortune

Communications was lowest one.

(iv) The Superintendent of Anti-Corruption

Bureau made certain queries and on 5.2.1998 lodged FIR

against applicant and others alleging therein that by

engaging additional videographers and incurring excess

expenditure, they committed offences under Sections 120-B,

471, 477 (a) of the Indian Penal Code read with Sections 13

(1)(d) and 13 (2) of the Prevention of Corruption Act, 1988.

Investigation was conducted. On completion of

investigation, chargesheet came to be filed before the

Special Judge. Applicant appeared and moved an

application (Exh.128) for discharge. The said application

came to be rejected. Being aggrieved thereof, this revision

application has been preferred.

3] Heard Shri Voditel, learned counsel for applicant at

length and Shri Balpande, learned APP for non-applicant.

4] It is submitted on behalf of applicant that number

of videographers from three to ten was increased by the

Chief Election Commissioner and applicant and all election

officers were directed to engage at least 10 videographers

for each constituency. It is submitted that due to increase

in the number of videographers and considering the

exigency of holding the timely elections, selection of

suppliers for videographers was made on the basis of tender

process initiated by applicant. The submission is that time

was short and so no fresh tender process was undertaken.

No audit objection was raised. No adverse communication

was received from the Election Commission. According to

applicant, allegations in FIR are misconceived and

unsubstantiated by any evidence.

5] Learned counsel for applicant challenges the

impugned order on the following grounds :

(i) Applicant was working as Collector. He

was charged for serious mis-demeanour. Considering the

nature of allegations made in FIR and in view of verdict of

the Hon'ble Supreme Court, preliminary enquiry by a

superior officer was necessary before lodging FIR. A

grievance is that no such preliminary enquiry was conducted

against the applicant.

(ii) To attract the offence under Section 13

(1)(d) of the Prevention of Corruption Act, 1988, basic

element is the dishonest intention to obtain an undue

pecuniary advantage for himself and others and against

public interest. It is submitted that in entire FIR there is no

whisper regarding dishonest intention of applicant to act

against public interest.

(iii) In departmental proceedings initiated

against applicant, it was categorically proved that charges

including the present one were not established against

applicant. Based on above submissions, learned counsel for

applicant vehemently contended that there is no prima facie

material to put applicant to trial and he ought to have been

discharged by the trial court.

(iv) In support, reliance is placed on -

                (i)            P. Sirajuddin etc. .vs. The State
                               of Madras, [AIR 1971 SC 520]

                (ii)           C.K. Jaffer Sharief        .vs.      State
                               (Through CBI),
                               (2013) 1 SCC 205.

                (iii)          State of Madhya Pradesh                 .vs.
                               Sheetla Sahai and others,
                               [(2009) 8 SCC 617]

                (iv)           State of Haryana and others .vs.
                               Bhajanlal and       others.
                               [1992     Supp. (1) SCC 335].


 6]      -      (i)            Per contra, learned APP submits that

defence of accused cannot be considered at this stage.

According to him, FIR makes out occurrence of offences and

trial court, considering the allegations against applicant,

rightly rejected the application for discharge.

(ii) It is submitted that as charge has been

framed against accused, he can defend prosecution case on

merits. According to learned A.P.P. the order of rejection

being legal and proper, criminal revision application

deserves to be dismissed.

7] Before adverting to the facts of the case, it would

be essential to reproduce here the provisions of Section 227

of the Code of Criminal Procedure, 1973 which reads thus -

227. Discharge - If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."

Section 227 requires that if the material collected by

investigating agency indicates prima facie complicity of the

accused, then court has to frame charge. The question as to

whether accused should be discharged or charge should be

framed against him or not can be decided on the basis of

material collected during investigation.

8] Keeping these legal parameters in mind, it is to be

seen in the present controversy, whether accused was

entitled for discharge. The main charge against

applicant/accused is under Section 13 (1)(d) of the

Prevention of Corruption Act, 1988 and so far as offences

under the Indian Penal Code are concerned, they flow from

the main charge. Section 13 (1)(d) of the Prevention of

Corruption Act reads thus :

13. Criminal misconduct by a public servant.--(1) A public servant is said to commit the offence of criminal misconduct,--

(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section ?; or

(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or

(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or

under his control as a public servant or allows any other person so to do; or

(d) if he,--

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

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

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

(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.

It is clear that in Section 13 (1)(d) of the Act in view of

introduction of the words "by corrupt or illegal means or by

otherwise abusing his position as public servant" a

dishonest intention on the part of public servant has to be

established. The words "otherwise abusing his position as

public servant" do not confine only to misuse his position as

public servant but such misuse must be with dishonest

mind. Unless it is established that public servant obtained

pecuniary advantage for himself or for any person by

dishonestly misusing his position as public servant, offence

under Section 13 (1)(d) of the Act cannot be said to be made

out.

9] As held by the Hon'ble Supreme Court in the case

of P. Sirajuddin etc. .vs. The State of Madras, AIR

1971 SC 520 referred in State of Haryana and others

.vs. Bhajanlal and others, 1992 Supp (1) SCC 335,

preliminary enquiry by a superior officer was necessary

before lodging FIR against a public servant who was charged

with serious mis-demeanour. In paragraph 17 of P.

Sirajuddin etc. .vs. The State of Madras (supra), the Hon'ble

Supreme Court observed thus :

17. In our view the procedure adopted against the appellant before the laying of the first information report though not in terms forbidden by law, was so unprecedented and outrageous as to shock one's sense of justice and fairplay. No doubt when allegations about dishonesty of a person of the appellant's rank were brought to the notice of the Chief Minister it was his duty to direct an enquiry into the matter. The Chief Minister in our view pursued the right course. The High Court was not impressed by the allegation of the appellant that the Chief Minister was moved to take an initiative at the instance of a person who was going to benefit by the retirement of the appellant and who was said to be a relation of the Chief Minister. The High Court rightly held that the relationship between the said person and the Chief Minister, if any, was so distant that it could not possibly have

influenced him and we are of the same view. Before a public servant, whatever be his status, is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person, specially one who like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to, in general. If the, Government had set up a Vigilance and Anti- Corruption Department as was done in the State of Madras and the said department was entrusted with enquiries of this kind, no exception can be taken to an enquiry by officers of this department but any such enquiry must proceed in a fair and reasonable manner. The enquiring officer must not act under any preconceived idea of guilt of the person whose conduct was being enquired into or pursue the enquiry in such a manner as to lead to an inference that he was bent upon securing the conviction of the said person by adopting measures which are of doubtful validity or sanction. The means adopted no less than the end to be achieved must be impeccable. In ordinary depart- mental proceedings against a Government servant charged with delinquency, the normal practice before the issue of a charge sheet is for someone in authority to take down statements of persons involved in the matter and to examine documents which have a bearing on the issue involved. It is only thereafter that a charge-sheet is submitted and a full-scale enquiry is launched. When the enquiry is to be held for the purpose of finding out whether criminal proceedings are to be resorted to the scope thereof must be limited to the examination of persons who have knowledge

of the affairs of the delinquent officer and documents bearing on the same to find out whether there is prima facie evidence of guilt of the officer. Thereafter the ordinary law of the land must take its course and further inquiry be proceeded with in terms of the Code of Criminal Procedure by lodging a first information report.

The law laid down in the case of P. Sirajuddin (supra) has

been reiterated by the Hon'ble Supreme Court in the case of

State of Haryana and others .vs. Bhajanlal and

others.

10] In the case on hand, charge as levelled in FIR are

of serious nature. To a pertinent query raised by this court,

learned APP has stated that no such preliminary enquiry was

conducted against applicant before registering FIR.

11] It is significant to note that in affidavit-in-reply,

non-applicant has not specifically denied that meetings were

held by the Chief Election Commissioner at Jalgaon between

12.12.1994 and 17.12.1994. It is not in dispute that in the

meetings, Election Officers were directed to engage ten

videographers per constituency instead of three, as directed

earlier. The entire accounts were submitted by the office of

applicant and audit department approved the same. No

objection was raised by the Chief Election Commissioner for

engaging ten videographers per constituency.

12] On perusal of FIR, it can be seen that dishonest

intention against the public interest is not attributed to

applicant any where in FIR. The vague and omnibus

allegations have been made that more videographers were

engaged and excess amount was spent for his own

advantage and advantage of the others. It is not enough to

attract the offence punishable under Section 13 (1)(d) read

with Section 13 (2) of the Prevention of Corruption Act,

1988. In these circumstances, it is also difficult to accept

the contention of non-applicant that huge financial loss has

been caused to the State Government due to engagement

of ten videographers per constituency.

13] The learned Special Judge, while rejecting the

application, observed that on the basis of evidence, merits

and demerits of the prosecution case can be determined

and declined to discharge the accused. From the order it is

apparent that trial court has not considered the material

placed on record in proper perspective and had not kept in

mind the essential ingredients of offences alleged in FIR.

Impugned order therefore is unsustainable in law. Criminal

Revision Application deserves to be allowed. Hence, the

following order :

ORDER

(i) Criminal Revision Application No.68 of 2013 is allowed.

(ii) Impugned order passed below Exh.128 in Special Anti Corruption Case No.6 of 2003 by the learned Special Judge, Buldhana on 25.9.2012 is set aside.

(iii) Application (Exh.128) filed by applicant in Special Anti-Corruption Case No.6/2003 is allowed.

(iv) Applicant - Prakash Murlidhar Bhishikar is discharged from Special Anti-Corruption Case No.6/2003 pending before Special Court, Buldhana.

 (v)            No order to costs.



                                       (Kum. Indira Jain, J.)
 Gulande, PA