Prakashkumar S/O Murlidhar ... vs State Of Maharashtra Thr. Police ...
2017 Latest Caselaw 3227 Bom

 CRA 66.13.odt                                 1
      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         NAGPUR BENCH : NAGPUR

        CRIMINAL REVISION APPLICATION NO.66 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
 Police Station, 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 revision takes an exception to the order dated

25.9.2012 passed in Criminal Case No.5/2003 by the learned

Special Judge, Buldhana 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 between the years 1993 and 1996. He was

assigned with the work of Adult Literacy Drive. According

to prosecution, upon enquires, it was revealed that applicant

along with District Literacy Officer indulged in corrupt

practice and purchased material for literacy drive to benefit

the other accused persons, who were the suppliers of

material.

(ii) The basic allegation against applicant is

that while conducting Adult Literacy Drive in District

Buldhana, number of illiterate adults in the age group of 15

to 35 years was taken as 2,00,000 by applicant and others

against the actual figure of 1,68,000 adult illiterates and the

purchases were made on higher side by applicant.

(iii) A survey was conducted and as per

survey, number of illiterate adults was found to be 1,52,062

and including 10% increase figure of illiterate adults in

Buldhana District should have been taken as 1,68,000. The

grievance is that wrong estimate of 2,00,000 illiterate adults

that is 32,000 more was made with a view to purchase

literacy material for non-existent 32,000 illiterate adults.

The allegation is that applicant with others indulged in

corrupt practice and, therefore, he was liable for

prosecution.

(iv) On a complaint, offence was registered

against applicant and other accused persons. After

completion of investigation, chargesheet was submitted

before the Special Court for the offence punishable under

Section 13 (1) (d) r/w 13 (2) of the Prevention of Corruption

Act, 1988 and Sections 465, 471, 477 (A) r/w 109 and 120

(B) of the Indian Penal Code. Applicant appeared in Special

Case. He moved an application for discharge (Exh.113)

under Section 227 of the Code of Criminal Procedure. The

said application was rejected vide order dated 25.9.2012.

This order is the subject matter of present criminal revision

application.

3] Heard Shri Voditel, learned counsel for applicant at

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

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

                (iii)          State of Madhya Pradesh .vs.
                               Sheetla Sahai and others,





                               [(2009) 8 SCC 617]

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



 5]      -      (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.

6] 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.

7] 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.

8] 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.

9] In the case on hand, since there was no

preliminary enquiry before lodging FIR and no opportunity

was given to applicant to explain the circumstances under

which he had shown 2,00,000 adult illiterates and purchased

literacy material for 2,00,000 adult illiterates, lodging of FIR

itself was against the law laid down by the Hon'ble Supreme

Court.

10] It is significant to note that in the departmental

proceedings, Enquiry Officer had categorically held that

charges were not established against applicant. One of the

charges was at Article III pertaining to the grievances made

by the complainant in the FIR. According to Enquiry Officer,

the said charge has not been proved. It is the contention of

applicant that he conducted himself in a most transparent

manner and having discretionary powers at his command,

anticipating the future requirement and relying upon the

proposals submitted to him by his subordinates, considered

the number of adult illiterates as 2,00,000 and accordingly

purchases were made. Further submission is that the figure

shown in FIR regarding number of adult illiterates was not

placed on record, whereas in the year 1991 figures

submitted to him by the District Literacy Officer comprised

of 1,77,812 persons, adding 10% increase permissible as per

the government directives, he rounded of the same to

2,00,000 adult illiterates. The submission is that there was

no question of dishonest intention on his part in making the

purchases as alleged in FIR.

11] If FIR is taken in its entirety on its face value, it can

be seen that no element of dishonest intention is alleged

against applicant by complainant. It is significant to note

that complainant is the Superintendent of Police, Anti-

Corruption Bureau. During the course of arguments,

learned counsel for applicant submitted that on the same

day, four complaints were lodged by the same officer

against the applicant, two out of them have been quashed

by this court and two including the present one are now

pending.

12] When FIR, on its face value, does not show the

ingredients of offence under Sections 13 (1) (d) and 13 (2)

of the Prevention of Corruption Act, 1988, this court is of the

view that it would not only be unnecessary but also against

the interest of justice to put the applicant to trial. The

reasons recorded by the trial court in rejecting the

application for discharge that only on appreciation of

evidence and considering the merits and demerits, it can be

determined whether accused has committed those offences

or not are unsustainable in law. So far as offences under the

Indian Penal Code are concerned, they flow from the offence

alleged under the Prevention of Corruption Act. As the main

charge fails, offences under the Indian Penal Code also

would not stand.

13] Learned APP submitted that charge has been

framed against applicant and other accused and the Special

Case is now for evidence of witnesses. The order of

discharge came to be passed on 25.9.2012. Present

Criminal Revision Application was filed on 25.3.2013. Vide

order dated 31.12.2012, charge came to be framed by the

trial court.

14] This court finds that as applicant has challenged

the order of discharge, subsequent framing of charge would

not take away his right to impugn the same in accordance

with the law.

15] In Criminal Revision Application No.65/2013 with

Criminal Revision Application No.153/2013, this court, vide

order dated 16.3.2016, has rejected the objection raised by

the learned APP to the maintainability of revision

application. In view of the same, it cannot be said that this

court cannot exercise the jurisdiction under Sections 397

and 401 of the Code of Criminal Procedure to examine the

correctness and legality of the impugned order.

16] In the above premise, this court is of the view that

reasons recorded by the trial court rejecting the application

(Exh.113) do not sustain in law. Revision Application

deserves to be allowed. Hence, the following order :

ORDER

(i) Criminal Revision Application No.66 of

2013 is allowed.

(ii) Impugned order passed below Exh.113 in

Special Anti Corruption Case No.5 of 2003 by the learned

Special Judge, Buldhana on 25.9.2012 is set aside.

(iii) Application (Exh.113) filed by applicant in

Special Anti-Corruption Case No.5/2003 is allowed.

(iv) Applicant - Prakash Murlidhar Bhishikar is

discharged from Special Anti-Corruption Case No.5/2003

pending before Special Court, Buldhana.

                (v)            No order to costs.



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