Dr. Anup Kumar Srivastava vs State
2003 Latest Caselaw 345 Del

JUDGMENT

R.C. Chopra, J.

1. This petition under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Code" only) seeks quashing of the FIR registered vide RC No. 56(A) of 96 dated 9th July, 1996 under Section 120-B and 109 IPC read with Section 9 of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the Act" only). It is also prayed that the report under Section 173 of the Code and the cognizance taken by the Court of learned Special Judge, Delhi in pursuance thereof may also be quashed.

2. The facts relevant for the disposal of this petition, briefly stated are, that the respondent-CBI received a source information that the accused mentioned in Column No. 1 had entered into a conspiracy during the period December, 1993 to May, 1994 to obtain illegal gratification for a public servant for providing NOC to M/s. Jagjiwan Co-operative House Building Society Limited to start building activity. It was alleged that in pursuance of the said criminal conspiracy, the petitioner herein and his co-accused S.M. Batra, who was working as OSD to a former Governor of Haryana, induced the office bearers of the said Society to pay Rs. 30 lacs to accused Ratan Kaul, son-in-law of Smt. Sheela Kaul, the then Minister for Urban Development in Government of India. It was also alleged that the office bearers of the aforesaid Society, were taken to the residence of Smt. Sheela Kaul by the present petitioner and S.M. Batra where Hawa Singh, co-accused, handed over a bag containing Rs. 5 lacs to co-accused Ratan Kaul as per the directions of the petitioner. Thereafter, further payments were made by way of bank drafts favoring Ratan Kaul, Vivek Kaul, Ashish Kaul, Shantanu Kaul, Suresh Butani and Smt. Manju Madan. These were given by the Society between the period 25.4.1994 to 6.5.1994. The details of the bankers cheques issued in the names of aforesaid persons have been given in the charge-sheet. NOC was not issued but the Society was pressed to pay the entire amount of Rs. 30 lacs.

3. The file pertaining to the grant of NOC to the Society came into movement and was dealt with at different levels but when the NOC was not issued, co-accused R.P. Gupta, an office bearer of the Society addressed a letter dated 18.7.1994 to the petitioner with a copy to Ratan Kaul mentioning the details of the payments made by them. Photocopies of the said letters were recovered from the residence of accused Ratan Kaul and S.M. Batra in the course of a search on 10.7.1996. A letter dated 10.8.1994 was also written by R.P. Gupta, co-accused to Ms. Deepa Kaul, wife of Ratan Kaul reiterating the fact that in spite of making payments the work of the Society had not been done. Another letter dated 31.8.1994 was addressed to Ratan Kaul at the address of official residence of Smt. Sheela Kaul mentioning therein the factum of payments to Ratan Kaul. On 19.12.1994, a telegram was also sent by co-accused Hawa Singh, Vice-President of the Society intimating draft numbers and dates of encashment thereof which were handed over by them to Ratan Kaul. The investigations conducted by the CBI confirmed the above deal between the co-accused. The statement of O.P.Sahni, who was also one of the office bearers of the Society, fully supported the allegations. A report under Section 173 of the Code was filed. Out of the nine accused originally arrainged, five were kept in Column No. 2 and charge-sheet was filed against eight accused which included the petitioner, S.M. Batra, Ratan Kaul, Smt. Manju Madan and four office bearers of the Society.

4. Learned counsel for the petitioner has prayed for quashing of the FIR, charge-sheet under Section 173 of the Code and the order taking cognizance mainly on the ground that the case against the petitioner was under Section 120-B IPC but no permission as required under Section 196(2) of the Code was obtained. It is submitted that Section 9 of the Prevention of Corruption Act prescribes maximum imprisonment of five years but does not say that the imprisonment would be rigorous and as such, in terms of Clause (2) of Section 196 of the Code, cognizance could not have been taken without requisite permission from the State Government or the District Magistrate. It is also argued that on the facts detailed in the report under Section 173 of the Code, no case whatsoever is made out against the petitioner to suggest even that he had entered into a conspiracy to obtain or give illegal gratification to a public servant.

5. Learned counsel for the respondent has controverter the submissions made by learned counsel for the petitioner and has argued that in view of Section 3(27) of the General Clauses Act, the "imprisonment" means imprisonment of either description and as such, the imprisonment provided in Section 9 of the Prevention of Corruption Act can be either rigorous imprisonment or simple imprisonment. It, therefore, cannot be said that no rigorous imprisonment can be awarded to an accused under Section 9 of the Act. It is submitted that in view of this position, Section 196(2) of the Code of Criminal Procedure is not attracted and as such, the cognizance taken by the Court against the petitioner is not bad in law. It is also argued that not only Section 120-B IPC but Section 109 IPC read with Section 9 of the Prevention of Corruption Act has also been invoked against the petitioner which does not require any sanction or permission as envisaged under Section 196(2) of the Act. Learned counsel for the respondent has referred to the allegations made against the petitioner in the report under Section 173 of the Cr.PC and has taken this Court through the statement of Shri O.P. Sahni recorded under Section 161 Cr.PC which clearly shows that the petitioner had entered into a conspiracy with his co-accused S.M. Batra and others for obtaining illegal gratification for a public servant for showing some favor to the Cooperative Society and had abetted also the office bearers of the Society to make certain payments to co-accused Ratan Kaul as illegal gratification. It is submitted that in view of the allegations made against the petitioner, evidence collected during investigations and the documents placed on record, there is no warrant for quashing the FIR, report under Section 173 of the Code or the order passed by the learned Special Judge taking cognizance of the offence.

6. Before dealing with the submissions made by learned counsel for the parties, it would be advantageous to quote certain provisions towards which the attention of this Court has been drawn. Section 196(2) of the Code reads as under :-

"196. Prosecution for offences against the State and for criminal conspiracy to commit such offence. -- (1) No Court shall take cognizance of -

  (a) xx xx xx

(b) xx xx xx

(c)  xx xx xx

(1A) xx      xx     xx     

(a)  xx xx xx

(b) xx xx xx  


 

(2) No Court shall take cognizance of the offence of any criminal conspiracy punishable under section 120B of the Indian Penal Code (45 of 1860), other than a criminal conspiracy to commit (an offence) punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, unless the State Government or the District Magistrate has consented in writing to the initiation of the proceeding:

Provided that where the criminal conspiracy is one to which the provisions of section 195 apply, no such consent shall be necessary.

(3) xx xx xx"

7. Section 9 of the Prevention of Corruption Act, 1988 reads as under :-

"9. Taking gratification, for exercise of personal influence with public servant. -- Whoever accepts or obtains or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gratification whatever, as a motive or reward for inducing, by the exercise of personal influence, any public servant whether named or otherwise to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favor or disfavor to any person, or to render or attempt to render any service of disservice to 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 servants, whether named or otherwise, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine."

8. Section 3(27) of the General Clauses Act, 1897 reads as under :

"Section 3(27) "imprisonment" shall mean imprisonment of either description as defined in the Indian Penal Code."

9. After hearing learned counsel for the parties and considering the submission made by them, this Court is of the considered view that non-description of the nature of the imprisonment that may be awarded under in Section 9 of the Prevention of Corruption Act does not preclude the Court from awarding a sentence of either nature to an accused. Section 53 of the Indian Penal Code describes that the imprisonment may be rigorous or simple. Wherever a penal provision provides for a particular kind of imprisonment the Courts get bound to award only that kind of imprisonment to a convict but in those cases where the penal provision is silent about the nature of punishment, the matter is left to the discretion of the Court, which may award rigorous imprisonment or simple imprisonment to an accused. This conclusion is fortified by Section 3(27) of the General Clauses Act which defines "imprisonment" as imprisonment of either description. Thus, the contention of learned counsel for the petitioner that absence of permission under Clause (2) of Section 196 of the Code renders the cognizance taken by the learned Special Judge under Section 120-B of the IPC a nullity cannot be sustained because the conspiracy alleged in this case was for an offence punishable under Section 9 of the Prevention of Corruption Act which provides imprisonment up to five years and as discussed above, this imprisonment may be either rigorous or simple in nature.

10. In the present case, the charge-sheet against the petitioner is not only for the commission of an offence under Section 120-B of the IPC but for an offence under Section 109 IPC read with Section 9 of the Prevention of Corruption Act also which requires no permission under Section 196 of the Code. Therefore, on this score also, the plea of learned counsel for the petitioner that the cognizance taken against him is bad in law cannot be accepted.

11. A perusal of the FIR, report under Section 173 Cr.PC, statements of the witnesses recorded under Section 161 Cr.PC and the documents placed on record clearly show that the petitioner had entered into a criminal conspiracy with his co-accused S.M. Batra to induce the office bearers of M/s. Jagjiwan Cooperative House Building Society Limited pay illegal gratification for getting "No Objection Certificate" regarding constructions on their plot. It is also shown on record that the petitioner had told the office bearers of the society that he was very close to the family of Smt. Sheela Kaul, the then Minister for Urban Development and was in a position to help them in getting the NOC. He as well as his co-accused S.M. Batra had further suggested to the office bearers that they will have to give membership of the society to the family members of Smt. Sheela Kaul. They had also told them that Rs. 5 lacs in cash be paid to Ratan Kaul, who was the son-in-law of Smt. Sheela Kaul. The investigations also revealed that payment of Rs. 5 lacs was made to Ratan Kaul by co-accused Hawa Singh, an office bearer of the society and thereafter the file pertaining to the grant of NOC gathered some momentum. The petitioner and S.M. Batra had taken co-accused Hawa Singh inside the residence of Minister for payment of Rs. 5 lacs and on his return, co-accused Hawa Singh had told his colleagues that the bag containing Rs. 5 lacs had been given to Ratan Kaul, son-in-law of Smt. Sheela Kaul as per the directions given by the petitioner. Thereafter, in April, 1994, the petitioner again told the office bearers to pay further amount to Ratan Kaul which was also paid by the office bearers through the bankers cheques in the names of Ratan Kaul, his family and others connected with him. The details of these payments, which were made from 30.4.1994 to 6.5.1994, have been given in the report under Section 173 of the Code. This Court, therefore, is not in a position to hold that no offence whatsoever is made out against the petitioner and as such, the FIR and the proceedings pending against him are liable to be quashed.

12. In the result, the petition stands dismissed.

13. It is, however, clarified that nothing stated herein shall be taken as an expression of opinion on the merits of the case pending before the Trial Court.