Bombay High Court
Sayyed Mohamad Kassam vs The State Of Maharashtra on 13 August, 2024
2024:BHC-AS:32279
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL REVISION APPLICATION NO.259 OF 2016
Sayyed Mohamad Kassam
Age 51 years, Occ. Business
R/o Room No.2959, Chawl No.369,
Motilal Nagar No.2, Goregaon (W),
Mumbai - 80. ....Applicant
V/S
The State of Maharashtra
At the instance of ACB, Mumbai
Vide their C.R.No.42 of 2011. ....Respondent
________
Mr. Vinay Bhanushali with Mr. Sanmit Vaze for the
Applicant.
Ms. Shilpa K. Gajare-Dhumal, APP for
Respondent/State.
Mr. Atul S. Chaudhari, PI, ACB Mumbai Unit, present in
Court.
__________
CORAM: SANDEEP V. MARNE, J.
RESERVED ON : 07 AUGUST 2024.
PRONOUNCED ON: 13 AUGUST 2024.
JUDGMENT
1 This Criminal Revision Application is filed challenging
the order dated 27 January 2016 passed by Additional
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Sessions Judge, Greater Bombay rejecting the application
at Exhibit-14 filed by Applicant seeking discharge in
Special Case ACB No.12 of 2014.
2 Prosecution story is that - Complainant Maqsood
Jainuddin Mullah was conducting tour and travel business
at Malad, Mumbai alongwith his friend Shri. Francis John
Koriya. That Complainant and his friend had decided to
purchase two new vehicles i.e. bus and taxi and had
approached the Regional Transport Authority (RTA) on 18
October 2011 for allotment of Special Registration
Number. At that time Shri Shailesh Meshram, Deputy
Regional Transport Officer had informed the Complainant
that he will have to shell out additional amount towards
bribe in addition to Government fees. That illicit
transactions of Shri Shailesh Meshram were being
handled by the Applicant as intermediatory. Complainant
accordingly registered Complaint on 20 October 2011. It
is alleged that for verifying the complaint, two
Government punch witnesses were sent alongwith
complainant with digital voice recorder on 20 October
2011, in which demand of Rs. 2,000/- towards bribe for
allotment of special number to be paid through Applicant
was recorded. Accordingly, FIR was registered being
Crime No.42 of 2011 under sections 7 and 8 of the
Prevention of Corruption Act, 1888 (PC Act) and section
34 of the Indian Penal Code, 1860 (IPC).
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3 It is prosecution case that on 3 November 2011, a
trap was arranged in which Applicant was caught red-
handed accepting bribe amount of Rs.2,000/-. The
currency notes were smeared with phenolphthalein
powder and the presence of the powder was observed in
the ultraviolet light on the body of the Applicant. Applicant
was accordingly arrested. So far as Shri Shailesh
Meshram is concerned, he filed application for
anticipatory bail which came to be granted by this Court
and accordingly he was not arrested. Applicant was kept
in custody till 5 November 2011 and was released on bail.
After completion of investigations, charge-sheet was filed
in Special Case ACB No.12 of 2014 against Shri Shailesh
Meshram (Accused No. 2) and Applicant (Accused No. 2).
4 Accused No.1-Shailesh Meshram filed application
seeking discharge, which came to be rejected by the
Additional Sessions Judge on 29 April 2015. The said order
became subject matter of challenge in Criminal Writ
Petition No.2575 of 2015. This Court allowed the said
Petition by order dated 8 December 2015 and discharged
accused No.1-Shailesh Meshram.
5 Applicant also filed discharge application at Exhibit-
14 before the learned Additional Sessions Judge. However,
by order dated 27 January 2016, the discharge application
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has been rejected. Order dated 27 January 2016 is subject
matter of challenge in the present Application.
6 The Application is admitted by this Court by order
dated 14 February 2017 and during pendency of the
present Application, further proceedings pending before
the learned Additional Sessions Judge in Special Case No.
42 of 2012 have been stayed.
7 Mr. Bhanushali, the learned counsel appearing for
the Revision Applicant would submit that the learned
Judge has erred in rejecting discharge Applicant's
application when the main accused, being public servant
Shri Shailesh Meshram has already been discharged by
virtue of order passed by this Court on 8 December 2015
in Criminal Writ Petition No.2575 of 2015. That Special
Leave Petition (Criminal) No.19926 of 2017 filed by State
Government challenging order dated 8 December 2015
has been dismissed by the Apex Court on 6 November
2017. He would therefore submit that since the main
accused in the case is discharged, there is no pint in
continuing the prosecution against Applicant who is a
private person.
8 Mr. Bhanushali would further submit that the learned
Judge has erred in relying on provisions of section 12 of
the PC Act without appreciating the position that the
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allegation against Applicant is about aiding the main
accused-public servant in commission of the crime. That
since the term 'abetment' is not defined under the
provisions of PC Act, reference to section 107 of the IPC is
essential. That it is settled law as per the judgment of the
Apex Court in Central Bureau of Investigations vs. V.C.
Shukla and others1 that when the allegation involves
abetment in the form of third clause of section 107 of IPC,
if prosecution is discontinued against the main accused in
respect of commission of crime, the question of abetment
by conspiracy would also not arise. He would therefore
pray for setting aside the impugned order passed by the
learned Judge and for discharge of the Applicant.
9 Per contra, Ms. Gajare-Dhumal, the learned APP
appearing for the Respondent-State would oppose the
Application submitting that demand of bribe is directly
attributable to Applicant which is specifically recorded in
the conversation between him and complainant. That in
addition to specific allegation of demand, Applicant has
personally accepted the bribe on behalf of the public
servant. That Applicant has been apprehended by the ACB
immediately after acceptance of bribe. That act of demand
and acceptance of bribe is witnessed by independent
witness Mr. Francis John Koriya. That there is sufficient
material for independently prosecuting Applicant and
mere discharge of the public servant cannot have any
1 AIR 1998 SC 1406
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effect on Applicant's prosecution. She would pray for
dismissal of the Revision Application.
10 I have considered the submissions canvassed by the
learned counsel appearing for parties. Perusal of
complainant's initial statement, forming part of the
charge-sheet, would indicate that the allegation of demand
of bribe was essentially against the public servant- Shri
Shailesh Meshram, who was functioning as Deputy
Regional Transport Officer. The statement alleges that on
18 October 2021, complainant and his friend Shri Francis
John Koriya met Shri Shailesh Meshram in the RTO and
during the course of conversation for allotment of special
numbers, Shri Shailesh Meshram informed the
complainant that he will have to pay additional amount
towards bribe over and above the levy of government fees.
Thus, the complaint of complainant was essentially
directed against Shri Shailesh Meshram. Complainant
further stated in the statement that Applicant used to look
after all the transactions of Shri Shailesh Meshram.
11 The prosecution case is that Applicant has demanded
and accepted illegal gratification of Rs.2,000/- from the
complainant on behalf of Shri Shailesh Meshram. The
main allegation under Sections 7, 13(1)(d) and 13(2) of the
PC Act is against Shri Shailesh Meshram. So far as
Applicant is concerned, he is charged under Section 12 of
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the PC Act for abetting commission of crime by Shri
Shailesh Meshram.
12 This Court has already discharged the main accused
Shri Shailesh Meshram by order dated 8 December 2015
passed in Criminal Writ Petition No.2575 of 2015, which
reads thus:
"1. This Petition challenges order dated 29.04.2015
refusing to discharge petitioner-accused No.1 from
Anti Corruption Bureau Special Case No.12 of 2014.
The learned Judge rejected the plea of the petitioner-
accused that 'there is not sufficient ground for
proceeding against' him. The fact leading to this
litigation in short can be stated as under :-
2. The petitioner is working as Deputy Regional
Transport Officer at Andheri. The prosecution case is
as under:- The complainant wanted two "special
registration numbers" for his two vehicles which
were proposed to be acquired by him and his friend.
Special numbers were allotted if they are available
albeit on charging certain fee. It is the case of the
complainant that it was the petitioner who was
authorized to allot special numbers after completing
prescribed procedure. On 18.10.2011, he met the
petitioner at his office and requested him to allot him
special numbers. To this, according to the
complainant, the petitioner demanded bribe. Hearing
this, the complainant approached Anti Corruption
Bureau on 20.10.2011 and lodged his complaint. The
Anti Corruption Bureau started taking steps for
catching the culprit while demanding and accepting
the bribe.
3. The first incident thereafter took place on
20.10.2011. The Anti Corruption Bureau placed a
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voice recorder on the person of the complainant and
asked him to go and have conversation with the
petitioner in presence of shadow panch. The
complainant then approached the petitioner in his
cabin. They had a conversation which was recorded.
Unfortunately while this conversation was going on,
the shadow panch was not present. Apparently he
could not enter into the cabin. The transcript of the
conversation is available on record. It is in Marathi
language and I could read and understand it easily.
The transcription indicates that the petitioner had
demanded Rs.2,000/- per number. But the
transcription does not clarify as to whether the
demand was bribe or official fee. Having regard to
the 'negotiating' nature of the conversation, the
demand could be bribe.
4. On 20.10.2011, the complainant's request for
special numbers was fulfilled and orders were passed
allotting him special numbers. It is nobody's case that
on that day any illegal gratification was delivered
either to the petitioner or to the other accused who is
said to be petitioner's agent for accepting bribes.
5.. Thereafter the complainant and Anti Corruption
Bureau tried to trap Kasam who was alleged agent of
the petitioner for accepting-bribes. On 21.10.2011
and 25.10.2011 traps were laid but nothing
transpired between the complainant and Kasam
though they could meet.
6. On 03.11.2011 again putting voice recorder
under his garments the complainant approached
Kasam for delivery of the bribe. This time he
delivered the amount and Kasam was immediately
apprehended red handed. Unfortunately, the voice
recording transcription of this event does not indicate
that Kasam accepted this amount for and on behalf of
the petitioner. Unfortunately the event of delivery of
the amount took place only between the accused
Kasam and the complainant. The shadow panch was
not around. There is no statement of shadow panch
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on record to indicate that he was personally present
when the conversation between the complainant and
the accused Kasam took place and Kasam accepted
the amount. So there is no corroboration for this
incident coming from the shadow panch. The
corroboration is neither available from the recorded
conversation. So assuming the demand was made,
there is no corroboration for acceptance of
gratification. Unless demand and acceptance of
illegal gratification is shown on record, there is no
point in proceeding with the case against the
petitioner.
7. The learned A.P.P. also took me through
statements of various other witnesses. One witness
Mahadik is a clerk working in R.T.O. Office who
stated in his statement that on 20.10.2011 while he
was present in the cabin of the petitioner, the
complainant had approached the petitioner and they
had talk about "special numbers" and certain
"money" to be given. But this witness did not state
that the conversation between the complainant and
the petitioner was in respect of bribe. Similar is the
statement of witness Kambli, who is also an employee
of R.T.O. These two witnesses do not take the
prosecution case further.
8. The Petition is allowed. The petitioner is
discharged."
13 The order passed by this Court on 8 December 2015
is confirmed by the Apex Court by dismissing Special
Leave Petition preferred by the State Government on
delay as well as on merits.
14 Thus the main accused, against whom the offence
under sections 7, 13(1)(d) and 13(2) of the PC Act was
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alleged, has been discharged. Applicant is not accused of
committing any independent offence and he charged for
having committed offence of abetment under section 12 of
the PC Act. Section 12 of the Prevention of Corruption Act
reads thus:
"12. Punishment for abetment of offences.
Whoever abets any offence punishable under this Act,
whether or not that offence is committed in
consequence of that abetment, shall be punishable
with imprisonment for a term which shall not be less
than three years, but which may extend to seven
years and shall also be liable to fine."
(emphasis and underlining supplied)
15 The learned Judge has rejected the discharge
application by considering the provisions of Section 12 of
the PC Act under which a person abetting an offence
punishable under the PC Act becomes liable for
punishment, whether or not the offence is actually
committed in consequence of such abetment.
16 The issue as to whether offence under section 12 of
PC Act would be maintainable when the main offence
under section 7, 13(1)(d) and 13(2) of PC Act is not made
out. In CBI vs. V.C. Shukla (supra), the Apex Court has
considered the issue of prosecution for offence under
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section 12 of PC Act in absence of offence under Section 7
against main accused and has held in paragraphs 50 and
51 of the judgment as under:
"50. Undoubtedly for a person to be guilty
thereunder it is not necessary that the offences
mentioned therein should have been committed
pursuant to the abetment. Since 'abetment' has not
been defined under the P. C. Act we may profitably
refer to its exhaustive definition in Section 107 of the
Indian Penal Code. As per that Section a person abets
the doing of a thing when he does any of the acts
mentioned in the following three clauses:
(i) instigates any person to do that thing, or
(ii) engages with one or more other person or
persons in any conspiracy for the doing of that
thing.........., or
(iii) intentionally aids, by any act or illegal
omission, the doing of that thing.
So far as the first two clauses are concerned it is not
necessary that the offence instigated should have
been committed. For understanding the scope of the
word. "aid" in the third clause it would be
advantageous to see Explanation 2 in Section 107
I.P.C. which reads thus:
"Whoever, either prior to or at the time of the
commission of an act, does anything in order to
facilitate the commission of that act, and
thereby facilitates the commission thereof, is
said to aid the doing of that act."
It is thus clear that under the third clause when a
person abets by aiding, the act so aided should have
been committed in order to make such aiding an
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offence. In other words, unlike the first two clauses
the third clause applies to a case where the offence is
committed.
51. Since in the instant case the prosecution,
intended to prove the abetment of Jains by aiding
(and not by any act falling under the first two clauses
adverted to above) and since we have earlier found
that no prima facie case has been made out against
Shri Advani and Shri Shukla of their having
committed the offence under Section 7 of the P. C.
Act, the question of Jains' committing the offence
under Section 12 - and, for that matter, their
admission in respect thereof - does not arise.
Incidentally, we may mention that the abetment by
conspiracy would not also arise here in view of our
earlier discussion."
17 Thus in CBI vs. V.C. Shukla (supra) the Apex Court
held that since 'abetment' has not been defined under the
PC Act, reference must be made to the exhaustive
definition of the term in section 107 of the IPC. Section
107 of the IPC reads thus:
"107. Abetment of a thing. - A person abets the
doing of a thing, who-
First.-Instigates any person to do that thing; or
Secondly.-Engages with one or more other
person or persons in any conspiracy for the
doing of that thing, if an act or illegal omission
takes place in pursuance of that conspiracy, and
in order to the doing of that thing; or
Thirdly.-Intentionally aids, by any act or illegal
omission, the doing of that thing.
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Explanation 1.-A person who, by wilful
misrepresentation, or by wilful concealment of a
material fact which he is bound to disclose,
voluntarily causes or procures, or attempts to cause
or procure, a thing to be done, is said to instigate the
doing of that thing."
18 Thus abetment of offence occurs in the three
eventualities of (i) instigation to any person to commit
offence, (ii) engagement with another person in any
conspiracy for commission of offence, and (iii) intentional
aiding in commission of offence. In the present case, the
third eventuality of intentional aid in commission of
offence by Shri Shailesh Meshram is alleged against the
Applicant. As held by the Apex Court in CBI vs. V.C.
Shukla (supra), if the main offence under Section 7 is not
made out, the offence of abetment under section 12 of the
PC Act can also not be made out.
19. This however would not mean that in every case,
person accused of committing offence under section 12 of
the PC Act would go scot-free by referring to provisions of
section 107 of the IPC. In respect of first and second
eventuality of instigation and engagement in conspiracy,
the offence of abetment can be independently prosecuted
in absence of commission or otherwise offences under
section 7 or 11 of the PC Act. However, when it comes to
the third eventuality of aiding commission of any offence,
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commission of offence is sine qua non for raising
accusation of intentional aiding. Therefore, following the
judgment of the Apex Court in CBI vs. V.C. Shukla
(supra), since offences under sections 7, 13(1)(d) and
13(2) of PC Act are no longer maintainable on account of
discharge of the main accused Shri Shailesh Meshram, the
offence of abetment by intentional aiding in commission of
the offence can also not be made out. In my view
therefore, Applicant deserves to be discharged on account
of discharge of the main accused Shri Shailesh Meshram.
20 Criminal Revision Application accordingly succeeds.
Order dated 27 January 2016 passed by the Additional
Sessions Judge is set aside. Applicant is discharged from
Special Case ACB No.12 of 2014.
21 Criminal Revision Application is accordingly allowed.
Rule is made absolute.
(SANDEEP V. MARNE, J.)
SUDARSHAN SUDARSHAN
RAJALINGAM KATKAM
KATKAM Date:
2024.08.13
14:00:37 +0530
