Dr. Anup Kumar Srivastava vs State Thr. Cbi
2013 Latest Caselaw 5343 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                   CRL.M.C.4360/2012
      DR. ANUP KUMAR SRIVASTAVA                   .....Petitioner
                      Through: Mr.S.K. Rungta, Sr. Advocate
                               with Ms. Pratiti Rungta, Mr. Sumit
                               Pargal and Mr. Prashant Singh,
                               Advocates
               versus
      STATE THR. CBI                                   ....Respondent

                        Through:     Ms. Sonia Mathur, Standing
                                     Counsel for CBI with Mr. Sushil
                                     Kumar Dubey, Advocate and Mr.
                                     R.L. Yadav, Investigating Officer
      CORAM:
      HON'BLE MR. JUSTICE SUNIL GAUR
%                       ORDER
                        21.11.2013

1. Vide impugned order of 8th November, 2012 petitioner alongwith his co-accused has been charged for committing offences under Section 120-B of IPC read with Sections 7, 12 and 13 (2) read with Section 13 (1) (d) of The Prevention of Corruption Act, 1988.

2. Petitioner was Commissioner (Excise), Delhi who had purportedly conspired with his co-accused-Lallan [Superintendent (Central Excise), New Delhi] and one Hemant Gandhi in getting illegal raid conducted on 28th December, 2011 at the premises of co-accused-Dalip Aggarwal and Anand Aggarwal to obtain bribe of `60 lac. On basis of source information, a trap was laid on 2nd January, 2012 at the parking of the office of Lallan, Superintendent (Central Excise), New Delhi where an amount of `3 lac had been kept by one Dalip Kumar, driver of aforesaid Superintendent (Central Excise) in a car (which was registered in the Crl.M.C.4630/2012 Page 1 name of wife of Superintendent-Lallan) and in the presence of two independent witnesses, the aforesaid bribe amount was recovered.

3. Upon registration of the case, during the course of investigation, recording of 96 intercepted phone calls containing conversations between the accused persons relating to this case was collected by Special Unit of CBI and the said conversations revealed that Hemant Gandhi (hereinafter referred to as A-3 in the charge-sheet) was in regular touch with petitioner (referred to as A-1) and Superintendent- Lallan (referred to as A-2) was chosen for illegal raid conducted on 28th December, 2011 on the godown of Dalip Aggarwal and Anand Aggarwal (hereinafter referred to as A-4 and A-5 respectively). According to prosecution, A-3 had collected bribe amount of `20 lac in cash and a cheque of `20 lac from A-5 for himself and for petitioner (A-

1) and A-2.

4. So far as petitioner is concerned, in the charge-sheet filed, it is alleged that at the request of A-3, petitioner (A-1) had deputed A-2 for conducting illegal raid at the premises of A-5 and A-3 kept petitioner (A-

1) informed telephonically about the recoveries made during the search, the success of mission and about amount of illegal gratification in cryptic language by saying "mission successful" and "six zero" and petitioner (A-1) acknowledged the same by saying "OK". In the charge- sheet filed, the sum and substance of the call details has been spelt out and with the aid of Section 120-B of IPC, petitioner is sought to be prosecuted in this case.

5. Quashing of impugned order (Annexure -A) as well as the charges framed in pursuance thereto, is sought in this petition primarily on the Crl.M.C.4630/2012 Page 2 ground that if two views are possible on the material relied upon by prosecution, it cannot give rise to grave suspicion justifying putting an accused on trial. To contend so, learned Senior Counsel for petitioner had relied upon decisions in P. Vijayan v. State of Kerala and Anr. AIR 2010 SC 663; Central Bureau of Investigation Hyderabad v. K. Narain Rao 2012 Crl.L.J. 4610 (SC); Subramaniam Samy v. A. Raja AIR 2012 SC 3336; CBI v. V.C. Shukla and Ors. AIR 1998 SC 1406; State v. Navjot Sandhu AIR 2005 SC 3820; State of Bihar v. Raj Kumar Mahto 2006 Crl.L.J. 4666; Pawan Kumar v. State of Haryana 2003 Crl.LJ. 3552; Mohan Singh Patel & Ors. v. State of Madhya Pradesh 2001 (4) Crimes 357; Kirtan Prasad v. State of Madhya Pradesh 2005 Crl.L.J. 69; Jaddoo Singh & Anr. v. Smt. Malti Devi & Anr. AIR 1983 Allahabad 87; Anter Singh v. State of Rajasthan AIR 2004 SC 2865; Vijender v. State of Delhi 1997 SCC (Cri) 857 and Suraj Mal v. State (Delhi Administration) AIR 1979 SC 1408.

6. During the course of hearing, it emerged that the following circumstances are relied upon by prosecution to connect petitioner with the offences in question: -

(a) Visit of Hemant Gandhi (A-3) to the office of petitioner on 27th December, 2011 during lunch hours where meeting between petitioner (A-1), Hemant Gandhi (A-3) and Lallan, Supdt. Central Excise (A-2) took place.

(b) In pursuance to aforesaid meeting, the conduct of illegal raid by Lallan (A-2) on the premises of A-5 under directions and protection of petitioner.

Crl.M.C.4630/2012 Page 3

(c) Complicity of petitioner in the illegal raid and settlement of illegal gratification in lieu of not taking action against A-4 and A-5 regarding unauthorized possession of imported mobiles detected during the raid.

7. At the hearing, it was vehemently asserted by learned Senior Counsel for petitioner that entry into the office building of petitioner can be made only on passes issued to visitors and there is no material on record to show that any pass was issued to Hemant Gandhi (A-3) on 27th December, 2011 to facilitate his entry into petitioner's office for the alleged meeting on that day during lunch hours. Thus, it was submitted that the factum of aforesaid meeting stands belied in the absence of entry pass.

8. Regarding the illegal raid, attention of this Court was drawn to the statement of Pradeep Kumar Aggarwal, Additional Commissioner, Anti- Evasion Branch (PW-5) to assert that depending on the nature of information, verbal approvals are given to develop intelligence information and to avoid information getting leaked out and this is done in the interest of revenue. It was asserted that no permission or authorization was given to conduct the raid in question. It was pointed out that there is no material on record to suggest that illegal raid in question was conducted under the directions and protection of petitioner.

9. It was vehemently asserted by learned Senior Counsel for petitioner that on the basis of material on record, it cannot be prima facie inferred that raid in question was conducted in conspiracy with petitioner and infact, call No.51 relied upon by prosecution, refers to earlier raid

Crl.M.C.4630/2012 Page 4 which was successful, and 'six zero' referred to in the said call was the duty/penalty leviable and it cannot be co-related to the raid in question, which according to prosecution was illegal and without any authorization from petitioner.

10. It was emphatically pointed out by learned Senior Counsel for petitioner that afore-referred call No.51 gets negated by call No.48 relating to conversation between the other two co-accused of petitioner regarding 'Muchhar' being unaware of illegal gratification pertaining to illegal raid in question. It was pointed out that undisputedly 'Muchhar' referred to in call No.48 is the petitioner.

11. Lastly, it was submitted by learned Senior Counsel for petitioner that there is nothing on record to connect petitioner with the offences in question and the call details are erroneously relied upon in the impugned order qua petitioner. At the cost of repetition, it was pointedly emphasized by learned Senior Counsel for petitioner that trial court has gravely erred in solely relying upon call No.51 while taking no notice of call No.48, which negates the prosecution case qua petitioner. Finally, it was submitted that no definite view can be formed about the complicity of petitioner in commission of the offences in question and so, quashing of impugned order qua petitioner is sought.

12. On behalf of respondent, reliance was placed upon decisions in Amit Kapoor v. Ramesh Chander and Another (2012) 9 SCC 460; Soma Chakravarty v. State through CBI (2007) 5 SCC 403; Sajjan Kumar v. Central Bureau of Investigation (2010) 9 SCC 368; Union of India v. Prafulla Kumar Samal and Another (1979) 3 SCC 4; Pratapbhai Hamirbhai Solanki v. State of Gujarat and Another 2012 (10) SCALE;

Crl.M.C.4630/2012 Page 5 Hardeo Singh v. State of Bihar and Another (2000) 5 SCC 623 & Firozuddin Basheeruddin and Others v. State of Kerala AIR 2001 SC 3488 to support the impugned order and to contend that there is strong suspicion about involvement of petitioner in the commission of offences in question. To further contend that there is no illegality or infirmity in the impugned order, it was submitted by learned Standing Counsel for respondent-CBI that there cannot be direct evidence of conspiracy and the call details relied upon by respondent are admissible and thus, sufficient to put petitioner on trial with his co-accused.

13. After having heard both the sides and on careful perusal of the impugned order, charge-sheet filed and the decisions cited, it emerges that trial court in the impugned order has prima facie opined that there is sufficient material on record to frame the charge of conspiracy under Section 120-B of IPC as well as under Sections 7 & 12 of The Prevention and Corruption Act, 1988 against petitioner. Noting that no overt act has been attributed to petitioner, strong reliance has been placed by trial court upon call No.51. Operative part of the impugned order qua petitioner reads as under: -

"As far as an overt act on the part of accused no. 1 is concerned, although the demand of bribe was not directly made by accused no.1 but this gratification, as per the version of CBI was demanded by accused no.2 on behalf of accused no.1 also. As per call no.51, he had agreed to accept the bribe amount as it is clear that when A-3 briefed A-1 about the raid and stated the agreed bribe figure of 'Six Zero' in cryptic manner, then neither A-1 Crl.M.C.4630/2012 Page 6 protested, nor demanded any explanation as to what was that figure. Rather he said "OK". So, accused no.1 cannot claim that he cannot be charged under Section 7 of the PC Act."

14. The need for independent application of mind has been stressed upon by Apex Court in Sajan Kumar (supra). In Prafulla Kumar (supra), relied upon by respondent, Apex Court has ruled that excepting the cases of grave suspicion, which the accused is unable to explain, trial court is empowered to discharge the accused. In Soma Chakravarty (supra), Apex Court has reiterated that suspicion alone cannot be the basis for framing of charge and there must exist some material therefore to justify framing of charge. In Amit Kapoor (supra), Apex Court has clarified that the suspicion ought to be strong enough to justify framing of charges.

15. No doubt final test of guilt is not to be applied at the stage of framing of charge, but when two views are possible, on the basis of material on record, then trial court is empowered to discharge the accused provided one of the two views, gives rise to grave suspicion regarding complicity of accused in the commission of the offence. It has been so ruled by Apex Court in its recent decision in Central Bureau of Investigation Hyderabad v. K. Narain Rao (supra). The ratio of the decisions relied upon by learned Senior Counsel for petitioner is that inference of criminal conspiracy may be drawn only when such circumstances are incapable of any other reasonable explanation.

Crl.M.C.4630/2012 Page 7

16. Upon scrutiny of the charge-sheet filed in the instant case, this Court finds that frequent interaction between petitioner (A-1) and informer-Hemant Gandhi (A-3) cannot by itself give rise to grave suspicion about the involvement of petitioner in the happening of the illegal raid in question. Similarly, call No.51 cannot be solely relied upon in isolation, particularly when, it stands contradicted by call No.48, which reveals that petitioner was not aware about the illegal raid and the illegal gratification involved. Inference of criminal conspiracy can be legitimately raised only when call No.48 is reasonably explained. Viewed from the point of view of a prudent person, solitary call No.51, strongly relied upon by prosecution, gives rise to a vague suspicion, which at best can be termed as mere suspicion but certainly not grave suspicion. It is so said because, at the hearing, assertion of petitioner's counsel regarding reference to 'six zero' pertaining to levy/penalty of earlier successful raid, was not refuted by respondent's counsel.

17. During the course of hearing, it was not shown by respondent's counsel as to how call No.48 can be reasonably explained. As call No.48 is prior in time, so first prosecution has to explain this call and then only, petitioner can be called upon to give a reasonable explanation regarding subsequent call No.51. Since the so-called incriminating call No.51 stands completely demolished by call No.48, therefore, it cannot be prima facie said that there is grave suspicion about involvement of petitioner in the commission of offences in question.

18. Viewed from any angle, prima facie case is not made out against petitioner. Thus, impugned order qua petitioner is rendered

Crl.M.C.4630/2012 Page 8 unsustainable and is quashed while refraining to comment upon the merits lest it may prejudice co-accused of petitioner at trial.

19. This petition is accordingly disposed of.

                                                 (SUNIL GAUR)
                                                    JUDGE
NOVEMBER 21, 2013
s




Crl.M.C.4630/2012                                                 Page 9