State vs Arvind Kumar Sharma & Others
2009 Latest Caselaw 434 Del

     * IN THE HIGH COURT OF DELHI AT NEW DELHI


+                      Crl. Rev. No. 812/2003


                           Judgment reserved on: 25.09.2008

%                           Judgment delivered on: 09.02,2009



State                              ...... Appellant
               Through: Mr. Pawan Sharma, Addl. P.P.
                        Mr. V.K. Malik for the police officials

                       versus


Arvind Kumar Sharma & others         ..... Respondents
         Through: Mr. Sandeep Sethi, Sr. Advocate with
         Mr. Anuraj Jain, Advocate for respondent Nos. 1
         & 2.


CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR


1.      Whether the Reporters of local papers may       Yes
        be allowed to see the judgment?

2.      To be referred to Reporter or not?               Yes

3.      Whether the judgment should be reported           Yes
        in the Digest?


KAILASH GAMBHIR, J.

1. By way of this criminal revision petition filed

under Section 397/401 of the Code of Criminal Procedure

read with Section 482 Cr.P.C. the State/revisionist seeks

to challenge the order dated 13.08.2003 passed by the

court of Sh. P.K. Bhasin, Special Judge, Delhi whereby the

learned court has discharged respondent Nos. 1 and 2 and

framed charges only against one Mr. Pawan Kumar,

respondent No. 3. The State also seeks quashing of the

said order so far as it has directed notice against the police

officials under section 250 of the Code of Criminal

Procedure. The State also seeks direction for framing of

charge under Section 120-B of IPC against respondent

No.3.

2. Brief facts relevant for deciding the present revision,

are as under:-

3. On 30.12.1996 a raid was conducted on the

basis of the complaint of Rakesh Kumar as the co-accused

Pawan Kumar had raised a demand of Rs.500/- for getting

the bus of the complainant cleared for the purposes of

pollution. The statement of the complainant was recorded

by Inspector Rajinder Singh, who was also part of the

Surveillance Team. A trap was laid and a signed note of

Rs.500/- was handed over to the complainant prior in

hand for bribing the accused persons. In the Course of

pollution Check of the vehicle of the complainant the

receipt in the sum of Rs.50/- was handed over to the

accused Arvind Kumar Sharma and the accused Arvind

Kumar gave that receipt to accused Rajan Thomas and a

signal was made to the complainant and the complainant

came there and the respondents gave original

parchi/receipt of Rs.50/- to the complainant. The accused

persons were thereupon challenged by the Surveillance

Team as all the three accused persons conspired together

and had taken the bribe of Rs.500/- for clearance of the bus

of the complainant for pollution purposes and issuance of

certificate in that regard. On personal search, the signed

currency note of Rs.500/- was recovered from the

possession of Sh. Pawan Kumar, the pollution check report

was also seized and the carbon copy of the said receipt in

the sum of Rs.50/- was recovered from the person of

accused Rajan Thomas, on the back of which, the figure of

5 had been written encircled by accused Pawan Kumar.

4. The respondent accused persons were apprehended

on the basis of the complaint received from Sh. Rakesh

Kumar (complainant) in regard to the demand of the illegal

gratification received by the accused persons for getting

his vehicle cleared and for issuance of pollution clearance

certificate. The aforesaid act of taking of bribe and

clearance of bus for pollution check and issuance of

pollution certificate in that regard, was committed in

conspiracy by all the accused persons. The statement of

Panch Witnesses/Independent Witnesses, Investigating

Officer and the supplementary statement of the

complainant was recorded and on completion of the

investigation, the charge sheet was submitted before the

learned Trial Court. The learned Trial Court heard the

arguments on the question of charge and after hearing, the

learned Court had passed an Order dated 13.08.2003,

whereby the respondent no. 1 and 2/accused persons have

been discharged and charge against accused Pawan

Kumar, respondent No.3 has been framed u/s 7/8/13 [1] [d]

of the POC Act while Section 120-B IPC was dropped. The

learned Trial Court while passing the order directed show

cause notice under Section 250 Cr.P.C. against the ACP

Rohtas Singh, who was incharge of the Surveillance Team

and the Raid Officer/Inspector Rajinder Singh for awarding

compensation to the respondents no. 1 and 2/accused

persons being responsible for their illegal arrest and

prosecution without there being any reasonable ground.

5. Mr. Pawan Sharma, Additional Public

Prosecutor for the State contended that learned trial court

has not properly appreciated the statement of the

witnesses wherein complicity of respondent Nos. 1 and 2

who were the concerned officials of the Transport

Department has been clearly shown in the said corruption

case but ignoring the clinching evidence on record, the

learned trial court framed charges only against co-accused

Pawan Kumar who was merely a conduit acting for and on

behalf of the said two officials to collect the bribe money.

Counsel for the State further submitted that a clear cut

case of conspiracy was made out and recovery of receipt of

Rs.50/- bearing a figure of "5" on its back from the

possession of respondent No.2 Mr. Rajan Thomas clearly

pointed to the fact that Mr. Pawan Kumar, co-accused had

written the said figure "5" in acknowledgment of the

receipt of bribe money of Rs.500/- on behalf of both the

officials. Counsel thus urged that the said amount of

Rs.500/- which was found in possession of Mr. Pawan

Kumar was in fact meant to be shared amongst all the

accused persons and the same was not meant for Pawan

Kumar alone, who had no authority to issue the pollution

clearance certificate. Counsel for the State further

submitted that in view of the settled legal position the trial

court at the time of framing of the charge cannot enter into

detailed analysis of the evidence and at that stage only

prima facie view has to be taken based on the material on

record disclosing commission of offence by the accused

persons.

6. With regard to the other contention of trial court

directing issuance of notice under Section 250 Cr.P.C.

against the police officials counsel submitted that no such

notice can be issued against the police officials. The said

police officials at best could have been prosecuted under

Section 340 of the Code of Criminal Procedure if they were

found to have acted in excess of their powers or were

found to have abused their powers in the course of

committing raid on the accused persons. Counsel for the

state also submitted that issuance of such a notice under

Section 250 Cr.P.C. against the members of the raiding

team would not only discourage and demoralize the

diligent police officials but would also send a wrong signal

to the police force. Counsel also submitted that the trial

court should have framed charge against respondent No.3

Pawan Kumar under Section 120-B IPC as all the co-

accused persons had conspired together to take bribe from

the complainant Rakesh Kumar.

7. Opposing the said revision petition Mr. Sandeep

Sethi, Senior Counsel appearing for respondent Nos. 1 & 2

strongly contended that while exercising revisional powers

the Court has a very limited scope to interfere with the

order of the trial court framing charges or discharging the

persons accused of offence. It is only where the order of

trial court is totally perverse, irrational or illegal on the

very face of it, then only the revisional court may interfere

and not otherwise, the counsel contended. The other

contention of the counsel for the respondent Nos. 1 & 2

was that even in the given facts and circumstances two

possible views can be taken, then, the revisional court will

not interfere merely if the other possible view which was

not taken by the trial court could be the better or more

preferred view. Counsel strengthening his argument

further submitted that it is only in a case where the view

taken by the trial court under any circumstance could not

be the permissible or possible view, then, only the same

can be interfered by this court in exercise of its revisional

powers. Referring to the impugned order on charge

counsel also submitted that the complainant was known to

the Incharge of the surveillance team, namely, ACP Rohtas

Singh and he had complained to the said surveillance team

only against Pawan Kumar, Home Guard who indulged in

getting vehicles cleared after taking money from the

owners/drivers. Counsel further submitted that in the

statement given by the said complainant and recorded by

the Inspector Rajinder Singh who was also member of the

Surveillance team, the allegations made by him were only

against Pawan Kumar and not against the other two

officials of the Transport Department. Counsel further

submitted that merely because the receipt of Rs.50/- was

found to have been recovered from the possession of Mr.

Rajan Thomas it could not prove his involvement in

accepting the bribe money. Counsel also went to the

extent of submitting that even insertion of figure "5" on the

backside of the receipt by Mr. Pawan Kumar alone could

not have been sufficient enough to establish the complicity

of the said two officials of the transport department.

Counsel for the respondent further submitted that the

surveillance team comprising of three persons had watched

the entire episode and it is not the case of the said team

that any money was demanded by either of the respondent

Nos. 1 and 2 in their presence or they had noticed any

signal being passed by Mr. Pawan Kumar to the other two

Inspectors or any circumstance showing the conspiracy

between Pawan Kumar and the other two transport

officials. Counsel thus submitted that merely based on

speculation or suspicion no charge could have been framed

against respondent Nos. 1 and 2 and accordingly no

illegality or perversity can be found in the order passed by

the learned trial court in discharging respondent Nos. 1

and 2 from the said case.

8. I have heard learned counsel for the parties at

considerable length and perused the record.

9. In a criminal trial, charges form the foundation

of the accusation and therefore, the trial courts have

to be very careful at the stage of framing charges. The

Trial Court has to carefully see that prima facie

evidence is available on record to proceed against a

person charged of an offence. If a prima facie

material is not available on record, then the framing of

charge amounts to illegal exercise of jurisdiction and

conversely if prima facie material is available on

record then not framing a charge or discharging a

person would also amount to illegal exercise of

jurisdiction.

10. It is a settled legal position that at the time of

framing of charge the court is not to sift the evidence

or to scrutinize the material on record so meticulously

or critically to find as to whether the prosecution will

ultimately succeed in the case or not. At the time of

framing of charge, the allegations made and the

evidence collected by the police are prima facie taken

into consideration to see whether prima facie

material exists for framing a particular charge. In this

regard, the Hon‟ble Apex court in State Vs. S.

Bangarappa-(2001) 1 SCC 369 observed as under:

21. Time and again this Court has pointed out that at the stage of framing charge the court should not enter upon a process of evaluating the evidence by deciding its

worth or credibility. The limited exercise during that stage is to find out whether the materials offered by the prosecution to be adduced as evidence are sufficient for the court to proceed further (vide State of M.P. v. Dr Krishna Chandra Saksena4).

11. The learned trial court in the present case

came to the conclusion that there is absolutely no

material against respondent nos. 1 and 2 justifying

framing of any charges against them. To reach at this

conclusion, the court found that the complainant

never alleged that any of the two accused inspectors,

respondent nos. 1 and 2 herein had demanded any

money from the complainant directly and even the co-

accused Pawan also did not mention the name of the

said two inspectors to the complainant, that they

would be sharing the bribe money with him. The court

also found that there is no evidence collected by the

surveillance team to show that the co-accused Pawan

after taking Rs.500/- from the complainant had passed

over any money to the said police inspectors as part of

their share money, nor even any signal was given by

the other co-accused Pawan to the two inspectors at

the time of the receipt of the said bribe money of

Rs.500/-. No conversation between the co-accused

Pawan and these two inspectors was also heard either

by the complainant or the other witnesses. Even the

pollution test was cleared in routine and merely

because carbon copy of the deposited receipt of

Rs.50/- was recovered from the possession of

respondent no.2 the same would not infer that there

was any kind of conspiracy or understanding between

the co-accused Pawan Kumar and two police

inspectors. Based on these facts the trial court

found that there was no material available on record

to frame charges against the respondent nos. 1 and 2.

12 . It is a matter of common knowledge that

conspiracies are never hatched in the open, by their

nature, they are secretly planned at some remote

place or may be near the scene of the occurrence

before the actual commission of offence. In this

regard, the Hon‟ble Apex Court in Mohd. Khalid Vs.

State of West Bengal-(2002) 7 SCC 334, observed

as under:

24. Conspiracies are not hatched in the open, by their nature, they are secretly planned, they can be proved even by circumstantial evidence, the lack of direct evidence relating to conspiracy has no consequence. (See E.K. Chandrasenan v. State of Kerala6.)

25. In Kehar Singh v. State (Delhi Admn.)7 (AIR at p. 1954) this Court observed: (SCC pp. 732-33, para

275) "275. Generally, a conspiracy is hatched in secrecy and it may be difficult to adduce direct evidence of the same. The prosecution will often rely on evidence of acts of various parties to infer that they were done in reference to their common intention. The prosecution will also more often rely upon circumstantial evidence. The conspiracy can be undoubtedly proved by such evidence direct or circumstantial. But the court must enquire whether the two persons are independently pursuing the same end or they have come together to the pursuit of the unlawful object. The former does not render them conspirators, but the latter does. It is, however, essential that the offence of conspiracy required some kind of physical manifestation of agreement. The express agreement, however, need not be proved. Nor actual meeting of the two persons is necessary. Nor it is necessary to prove the actual words of communication. The evidence as to transmission of thoughts sharing the unlawful design may be sufficient."

Conspiracy can be proved by circumstances and other materials. (See State of Bihar v. Paramhans Yadav8.) To establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it

would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use."

13. The grant of pollution control certificates

is a part of the routine duty of the staff of the

transport authority comprising of pollution inspectors

and other staff members and on any single day many

vehicles pass through their hands for the grant of

pollution certificates. The complainant Rakesh Kumar

who had gone for the pollution check up of his bus

bearing no. DL-1P 2703 at Sheikh Sarai Transport

Authority had a bad experience with the staff of the said

authority when earlier he had gone to obtain one such

clearance for his vehicle. In his statement he said as

under:

" Earlier, on one occasion, my vehicle had been declared failed on my not making the payment and I had suffered the losses of many days business."

14. With the said experience at the back of his

mind he came across one Pawan who told him that on

payment of Rs.500/- his vehicle will be cleared of the

pollution test and when the complainant said that the

amount of Rs.500/- is a big amount the said co-accused

retorted back by saying that there are 2-2 inspectors to

share the said money. The portion of said statement of

Rakesh Kumar is reproduced as under:

"In the last week when I got checked the Pollution check of my another vehicle, I had learnt that one person namely Pawan, who uses to assist the Pollution Inspector, uses to take money and get the vehicle passed. Today also this man is standing with the Pollution Inspector. On seeing me heading towards him, he questioned-do you want to get passed your vehicle‟s Pollution Test. On my saying yes, he asked that it will cost Rs. five hundres, I will get the vehicle passed. I asked him that five hundred is a big amount. On this, he asked that there was two-two Inspectors, what can be done in the amount less than it."

15. The said background under which the

complainant had approached the ACP who happened to

come across the complainant on the morning of the same

day and agreed to apprehend the culprits cannot be

overlooked. After constituting the raiding party, Shri

Rohtas Singh, ACP made his own signature on the one

corner of note of Rs.500/-. It was then returned to the

complainant which was ultimately to be given to co-

accused Pawan as a bribe money. The said note of

Rs.500/- was delivered by the complainant to Shri Pawan

after the same was kept in the relevant pollution checking

papers, which was ultimately kept by the said co-accused

Pawan in the left side pocket of his shirt. After checking

the pollution, one slip was given to inspector Sharma

with whom Pawan had some talk and thereafter the said

slip was passed on to other inspector Ranjan Thomas with

whom also Pawan had some conversation after drawing

his attention towards the complainant. It is also not in

dispute that said note of Rs.500/- was recovered from

Pawan after his personal search and carbon copy of the

deposit slip was recovered from Ranjan Thomas,

Inspector/respondent no.2. On the reverse of this deposit

slip word „five‟ was found mentioned after it was

encircled. This very slip was passed on after writing „five‟

on the reverse of the same by Pawan to Inspector Sharma

and then to Ranjan Thomas.

16. The effect of the document in which the

complaint was made by the complainant, instant

constitution of a surveillance team, representation of the

co-accused that the money will be shared with the two

police inspectors, handing over of the signed currency

note of Rs.500/- by the complainant to the co-accused

Pawan Kumar who after receipt of the same acknowledged

by writing word „five‟ by encircling it on the back of the

deposit slip to indicate the co-accused about the receipt of

bribe money, some unheard communication between the

co- accused with the other two inspectors and then

recovery of the carbon copy of the deposit receipts from

pollution inspector Ranjan Thomas, cannot be considered

to be not constituting a prima facie case for not charging

all the accused persons for the commission of the offences

punishable under Section 7/8/13 (1) (d) of the Prevention

of Corruption Act read with Section 120-B IPC. It appears

that the trial Court had improperly under rated the value

of the said evidence and therefore, illegally exercised the

jurisdiction by discharging the accused Arvind Sharma

respondent no.1 and Ranjan Thomas respondent no.2.

17. It is no doubt true that normally the revisional

Court would not interfere, where the view taken by the

trial Court is one of the possible views and the revisional

Court would interfere only where the order passed by the

trial Court is perverse, irrational and illegal on the very

face of it as argued by the counsel for the respondent. The

object of the revisional jurisdiction very aptly defined by

the Hon‟ble Apex Court in Jagannath Choudhary Vs.

Ramayan Singh-(2002) 5 SCC 659 is as under:

9. Incidentally the object of the revisional jurisdiction as envisaged under Section 401 was to confer upon superior criminal courts a kind of paternal or supervisory jurisdiction, in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions of (sic or) apparent harshness of treatment which has resulted on the one hand in some injury to the due maintenance of law and order, or on the other hand in some undeserved hardship to individuals. (See in this context the decision of this Court in Janata Dal v. H.S. Chowdhary4.) The main question which the High Court has to consider in an application in revision is whether substantial justice has been done. If however, the same has been an appeal, the applicant would be entitled to demand an adjudication upon all questions of fact or law which he wishes to raise, but in revision the only question is whether the Court should interfere in the interests of justice. Where the court concerned does not appear to have committed any illegality or material irregularity or impropriety in passing the impugned judgment and order, the revision cannot succeed. If the impugned order apparently is presentable, without any such infirmity which may render it completely perverse or unacceptable and when there is no failure of justice, interference cannot be had in exercise of revisional jurisdiction.

18. In my considered view the aforesaid circumstances

and the material placed on record by the prosecution at

the stage of framing of charge was sufficient enough to

form a prima facie view to frame charges against the

accused persons and as already discussed above at the

stage of framing of charges the trial Court is not to weigh

the evidence in such a fine scale to ascertain whether such

an evidence will ultimately result into conviction of the

accused or not. The position would have been different

had the material on record even if proved under no

circumstance can result in the conviction of the

accused. The trial court in such a circumstance can

discharge the accused at the stage of framing of

charge. The present case does not appear to be one

such case where such a view could be formed.

Indisputably, the Home Guard Pawan was not in a

position to grant pollution certificate unless the

pollution inspectors were in league with him. I also

do not find any justification in the observation of the

learned trial court stating that once the vehicle had

qualified the test of pollution, therefore, where was

the need to bribe the officers. One cannot be oblivious

of the fact that in most of the cases the corrupt

officers indulge into corruption even where the

citizens are legally entitled to get their job done. This

is an irony of our Nation, where the citizens have to

bribe unscrupulous and corrupt Govt. officials for

seeking many types of certificates, licenses,

allotments, clearances, etc. to which they are

otherwise legitimately entitled to. The bribery and

corruption are so rampant and with a view to avoid

unnecessary harassment and delays the people are

forced to grease the palm of corrupt officials and the

licensing authorities working under the control of the

transport department are no exception to this

syndrome.

19. In the light of the above discussion, I am satisfied

that the present revision petition filed by the State

deserves to be allowed. The matter is remanded back

to the learned trial court to frame charges against

accused nos. 1 and 2 under Sections 7/8/13 (1) (d) of

the Prevention of Corruption Act. The trial court shall

also frame charges against the respondent no.1 and

the other respondents under Section 120-B IPC. I

further set aside the order of the trial court directing

show cause notice against respondent nos. 1 and 2

under Section 250 of the Cr.P.C. with the liberty to the

trial court to take a view in this regard at the time of

passing of the final order.

20. With these directions the present petition

stands disposed of.

February          09, 2009        KAILASH GAMBHIR
Pkv/mg                                    JUDGE