Delhi High Court
Jatinder Pal Singh vs Central Bureau Of Investigation & ... on 17 January, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 17th December, 2021
Pronounced on: 17th January, 2022
+ CRL. M.C. 3118/2012
JATINDER PAL SINGH ..... Petitioner
Through: Mr. Sudhir Nandrajog, Sr.
Advocate with Mr. H. S.
Bhullar and Mr. Shikhar
Sharma, Advocates
versus
CENTRAL BUREAU OF INVESTIGATION ..... Respondent
Through: Mr. Rajesh Kumar, SPP for
CBI with Ms. Mishika
Pandita, Advocate
CORAM:
HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
JUDGMENT
[VIA VIDEO CONFERENCING]
CHANDRA DHARI SINGH, J.
1. The Petitioner has approached this Court by way of the instant
petition under Sections 397 and 401 read with Section 482 of the Code of
Criminal Procedure (hereinafter referred to as "Code") for setting aside
the order of the Court below dated 1st June 2012, whereby common
charges had been framed against the accused including Jatinder Pal Singh
(hereinafter referred to as "Petitioner") and the consequential order dated
4th June 2012 framing individual charges against the Petitioner in the case
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titled as "CBI v. Ketan Desai and Others" pending before Special Judge
CBI-5, Patiala House Courts, New Delhi.
FACTUAL MATRIX
2. Before adverting to the submissions made by the learned counsels
for parties, it is essential to highlight the factual background of the instant
matter which is stated hereunder:
i) The impugned proceedings have arisen from the First
Information Report registered by the CBI vide Case bearing No.
RC 02(A)/2010/CBI/ACU-IX/New Delhi on 22nd April 2010,
under Sections 7/8/11/13(2) read with Section 13(l)(d) of
Prevention of Corruption Act, 1988 (hereinafter referred to as "PC
Act") and Section 120-B of the Indian Penal Code, 1860
(hereinafter referred to as "IPC"), on the allegations that Dr. Ketan
Desai, President of the erstwhile Medical Council of India
(hereinafter referred to as "MCI"), entered into a criminal
conspiracy with the Petitioner, Dr. Sukhvinder Singh and others
with the object to show favor qua recognition of the courses and
grant of permission pertaining to Gian Sagar Medical College and
Hospital, Patiala (hereinafter referred to as the "GSMCH") as
mandated by the Indian Medical Council Act, 1956 and the
relevant MCI Regulation and Rules for admission into 4th year of
the MBBS course for the academic session 2011-2012.
ii) The prosecution‟s version is that on the basis of reliable and
specific information, CBI Special Unit, New Delhi had placed the
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mobile phones under telephonic surveillance during the period
when MCI received the application for renewal of permission from
GSMCH, Patiala for admission into 4th Batch of the MBBS course.
The investigation further revealed that criminal conspiracy to
obtain favors in the form of recommendation for permission for
admission into fourth year batch for MBBS course began after
deficiencies were pointed out during first inspection of GSMCH,
Patiala. Accordingly, the aforementioned FIR was registered
against the accused persons on the allegations as aforesaid.
iii) Subsequently, on 22nd April 2010 recovery was made
wherein Dr. Kamaljeet Singh was intercepted while allegedly
delivering a sum of Rs. 2 crores, as illegal gratification for the
aforementioned purpose, at the residence of the Petitioner by the
income tax authorities and liquor bottles were seized by the police
authorities.
iv) Upon the completion of the investigation, the Final Report
under Section 173 of the Code was filed on 16th September 2011
under Sections 7/8/12/13(2) and 13(1)(d) of the PC Act along with
Section 120-B of the IPC in the Court of Special Judge for CBI
Cases, Patiala House Courts, New Delhi.
v) Trial Court took cognizance of the same on 10th October
2011. The copies of the documents relied upon were supplied to
the accused persons including the Petitioner. After hearing the
arguments on charge, the Trial Court on 1st June 2012 passed a
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common order on charge under Sections 7/8/12/13(2) and 13(1)(d)
of the PC Act along with Section 120B of the IPC as well as an
individual order on charge on 4th June 2012 against the petitioner
under Section 12 of the PC Act.
vi) Aggrieved by the aforementioned orders, the Petitioner has
approached this Court, under Sections 397/401 read with Section
482 of the Code, praying for setting aside the impugned orders.
3. A Co-ordinate Bench of this Court in Crl. Rev. P. 493/2012, vide
its Order dated 5th September 2012, in view of the law laid down by the
Division Bench of this Court in Anur Kumar Jain v. Central Bureau of
Investigation, 178 (2011) DLT 501 (DB), held that the revision is not
maintainable. The High Court accordingly directed the revision petition
to be treated only under Section 482 of Code and accordingly the
Registry was directed to register this petition as Crl. M.C.
4. During the pendency of the instant petition, the Petitioner had
approached the Hon‟ble Supreme Court, challenging the orders passed by
the Trial Court and the High Court wherein, the Hon‟ble Supreme Court
in SLP (Crl.) No. 9475 of 2012 (which later became Criminal Appeal No.
1385 of 2013), vide its order dated 2nd January 2013, was pleased to stay
the proceedings.
5. The said Criminal Appeal No. 1385 of 2013 of the present
Petitioner was clubbed with a bunch of matters challenging the same
question of law under the title "Asian Resurfacing Road Agency Pvt Ltd.
v. CBI" which was subsequently decided by the Hon‟ble Supreme Court
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holding inter alia that the order framing charge is neither purely an
interlocutory order nor a final order and hence, the jurisdiction of the
High Court is not barred irrespective of the label of the petition, be it
under Section 397 or 482 of the Code or Article 227 of the Constitution
of India.
SUBMISSIONS
6. Mr. Sudhir Nandrajog, learned senior counsel appearing on behalf
of the Petitioner has primarily advanced five-pronged arguments which
form the crux of the case for the Petitioner:
a. Firstly, the senior counsel contented that as per the relevant
MCI Regulation and Rules of 1999, there was no requirement of an
auditorium to be constructed at GSMCH, Patiala at the stage of
admission of the fourth-year batch of MBBS course and there was
no concealment about the fact that an auditorium was under
construction and the same was disclosed by the college and
confirmed by the inspecting team. Therefore, the allegation of the
Respondent that the Petitioner was acting as conduit between Dr.
Sukhwinder Singh and Dr. Kamaljeet Singh and the Public
Servant, Dr. Ketan Desai, President of erstwhile MCI reaches no
logical conclusion as the auditorium allegedly with respect to
which the bribe was to be given was not even a requirement in
respect of admission
b. Secondly, the senior counsel submitted that the manner in
which the alleged telephonic conversation was intercepted and
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recorded by the concerned authorities is prima facie illegal and no
reliance can be placed on them because of the fact that they were
obtained illegally. To buttress this argument, learned senior
counsel has extensively relied upon a Bombay High Court‟s
judgment in Vinit Kumar v. Central Bureau of Investigation,
2019 SCC Online Bom 3155. He also argued that in the
intercepted conversations, the Court Below has based its
conclusions on the basis of conjectures and surmises since there
was no categorical mention of the petitioner and further, there was
no reason for them to converse in code words. He also argued that
the Compact Disc on which the alleged intercepted phone calls
were recorded was neither sent to CFSL nor was it used as a relied
upon evidence. Thus, it was argued that the same could not have
been admissible under Section 65-B of the Evidence Act, 1872.
c. Thirdly, he also laid considerable emphasis on the seizure
memo‟s Item No. 50 regarding the alleged recovery of bribe
amounting to two crores. It is the case of the Petitioner that the
entry has been squeezed in the memo in order to incriminate the
Petitioner notwithstanding the fact that the amount of Rs.
2,17,75,000/- was well accounted for as it formed the part of the
advance received by the Petitioner towards sale of his land situated
at Village Maghrauli Khadar, Dospur Pargana Dadri, District
Faridabad. He also submitted that the same fact has been
corroborated by the witnesses who were involved in the above
transaction, as well as the source of money was explained before
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the Income Tax Authorities along with the evidence. Further, he
submitted that the Respondent has failed to produce any evidence
to establish the money trail or establish any connection with the
seized money and the allegations made in the chargesheet.
d. Fourthly, senior counsel submitted that the main accused.
Dr. Ketan Desai, was already discharged by this Hon‟ble Court
vide its order dated 12.02.2018. The Respondent has failed to even
establish involvement of any Public Servant in alleged conspiracy
therefore, any prosecution/investigation under the PC Act is thus
void ab initio.
e. Fifthly, it was also submitted that the chargesheet was filed
in violation to the CBI Manual (Crime) since the approval of the
CBI director was not sought before filing the charge sheet. Thus,
the proceedings have no validity in the eyes of law. To buttress the
argument, reliance was placed on the judgment passed by the co-
ordinate bench of this Hon‟ble Court in the case of Ripun Bora v.
State, 2011 SCC OnLine Del 5235.
f. Lastly, it was argued that the testimony of the co-accused
could not have been relied upon. He submitted that Section 19 (l)
(a) of the Prevention of Corruption Act, 1988 makes it mandatory
to commence and continue prosecution only after sanction form the
competent authority has been obtained, as held by the Hon'ble
Supreme Court in State of Goa v. Babu Thomas, (2005) 8 SCC
130 according to which valid sanction is a condition precedent for
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prosecuting any public servant under the PC Act. It was submitted
that in absence of such sanction, Dr. Suresh C. Shah could not have
been made an accused. If he could not have been made an accused,
then there is no question of him being made an approver. Hence the
evidence tendered by Dr. Suresh C. Shah is vitiated a nullity in the
eyes of the law and could never have been pressed into service
against the Petitioner, much less be made the sole fulcrum of
framing of charges against the Petitioner.
7. Per contra, Mr. Rajesh Kumar, learned SPP appearing on behalf of
the Respondent/CBI made the following submission to counter the
substantive arguments made by the Petitioner:
i) Firstly, he submitted that the arguments made by the
Petitioner are not appropriate to be argued at the current stage,
where only charges have been framed based on the probability of
commission of offense. He argued that the said arguments can be
considered at the stage of final arguments but not at the stage
where the order on charges needs to be set aside.
ii) Secondly, he argued that the evidence of the approver has
been taken by following the procedure under the Code. The
arguments raised by the petitioner have been dealt with by the
Court below in its order on charge. It was also submitted that the
approver i.e., Dr. Shah has also inculpated himself with regard to
his confession. Thus, it is wholly wrong on the part of the
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petitioner to contend that the approver has not incriminated
himself.
iii) Lastly, it was argued that the circumstances and the evidence
recovered during the investigation indicate towards the guilt of the
petitioner. Thus, there was no gross illegality in the order of the
Trial Court warranting the interference of this Court under its
revisional jurisdiction.
8. The rival submissions now fall for consideration before this Court.
ANALYSIS & FINDINGS
9. This Court has heard the learned counsels for parties at length,
given thoughtful consideration to the submissions made and has also
perused the material on record.
10. Before adverting to the analysis of the arguments made and case
laws cited by the parties, to appreciate the case at hand, it is pertinent to
refer to the law laid down by judgments in this context along with a
perusal of the statutory provisions of the Code as well as the PC Act and
Evidence Act.
11. Under the provisions of the Code, specifically Sections 397 and
401, High Court has its power to exercise its Revisional Jurisdiction in
furtherance of any proceeding before any inferior Criminal Court.
(i) Section 397 of the Code reads as under:
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―397. Calling for records to exercise powers of
revision.- (1) The High Court or any Sessions Judge
may call for and examine the record of any
proceeding before any inferior Criminal Court situate
within its or his local jurisdiction for the purpose of
satisfying itself or himself; to the correctness, legality
or propriety of any finding, sentence or order,
recorded or passed, and as to the regularity of any
proceedings of such inferior Court, and may, when
calling, for such record, direct that the execution of
any sentence or order be suspended, and if the
accused is in confinement, that he be released on bail
or on his own bond pending the examination of the
record.
Explanation. - All Magistrates whether Executive or
Judicial, and whether exercising original or appellate
jurisdiction, shall be deemed to be inferior to the
Sessions Judge for the purposes of this sub- section
and of section 398.
(2) The powers of revision conferred by sub- section
(1) shall not be exercised in relation to any
interlocutory order passed in any appeal, inquiry,
trial or other proceeding.
(3) If an application under this section has been made
by any person either to the High Court or to the
Sessions Judge, no further application by the same
person shall be entertained by the other of them.‖
(ii) Section 401 of the Code, which specifically deals with the
power of revision of the High Court, reads as follows:
―401. High Court's powers of revision. -- (1) In the
case of any proceeding the record of which has been
called for by itself or which otherwise comes to its
knowledge, the High Court may, in its discretion,
exercise any of the powers conferred on a court of
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appeal by Sections 386, 389, 390 and 391 or on a
Court of Session by Section 307 and, when the Judges
composing the court of revision are equally divided in
opinion, the case shall be disposed of in the manner
provided by Section 392.
(2) No order under this section shall be made to the
prejudice of the accused or other person unless he has
had an opportunity of being heard either personally or
by pleader in his own defence.
(3) Nothing in this section shall be deemed to
authorise a High Court to convert a finding of
acquittal into one of conviction.
(4) Where under this Code an appeal lies and no
appeal is brought, no proceeding by way of revision
shall be entertained at the instance of the party who
could have appealed.
(5) Where under this Code an appeal lies but an
application for revision has been made to the High
Court by any person and the High Court is satisfied
that such application was made under the erroneous
belief that no appeal lies thereto and that it is
necessary in the interests of justice so to do, the High
Court may treat the application for revision as a
petition of appeal and deal with the same
accordingly.‖
The High Court while exercising its revisional jurisdiction must
apprise itself of the question of correctness, legality and propriety of
order of the subordinate Court. A bare reading of the provision suggests
that the Court is required to analyze the findings, sentence or order passed
by the subordinate Court, against which the Petitioner is seeking relief
before the Courts concerned.
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12. It is also pertinent to refer to the provisions of the PC Act under
which the Petitioner is implicated in the instant case. The provisions are
reproduced hereunder:
(i) Section 8 that deals with offence relating to bribery to a
public servant reads as under:
―8. Offence relating to bribing of a public servant. --
(1) Any person who gives or promises to give an
undue advantage to another person or persons, with
intention--
(i) to induce a public servant to perform
improperly a public duty; or
(ii) to reward such public servant for the
improper performance of public duty,
shall be punishable with imprisonment for a term
which may extend to seven years or with fine or with
both:
Provided that the provisions of this section shall
not apply where a person is compelled to give such
undue advantage:
Provided further that the person so compelled
shall report the matter to the law enforcement
authority or investigating agency within a period of
seven days from the date of giving such undue
advantage:
Provided also that when the offence under this
section has been committed by commercial
organization, such commercial organization shall be
punishable with fine.
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It is settled law that the aforesaid provision under Section 8 applies
to a private person, if he induces a public servant to do an act by corrupt
or illegal means.
(ii) Section 12 that deals with punishment for abetment of
offences, reads as under:
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.‖
13. The word abetment has not been defined in the PC Act but by
virtue of Section 28 of the PC Act, it is permissible to look into the
definition of abetment as appearing under Section 107 of the IPC. Section
107 of IPC reads as under:
―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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Thus, as per Section 107 of the IPC, an offence of abetment takes
place in one of the three ways namely: (i) by instigation, (ii) by engaging
in conspiracy for doing that thing and if an act or illegal omission takes
place pursuant of that conspiracy; and (iii) by intentional aiding.
14. A person is said to „instigate‟ another to an act when he actively
suggests or stimulates him to act by any means or language, direct or
indirect, whether it takes the form of express solicitation, or of hints,
insinuation or encouragement. The word „instigate‟ means to goad or
urge forward or to provoke, incite, encourage or urge to do an act. A mere
intention or preparation to instigate is neither instigation nor abetment.
The offence is complete as soon as the abettor has incited another to
commit a crime, whether the latter consents or not or whether, having
consented, he commits the crime or not. It depends upon the intention of
the person who abets and not upon the act which is actually done by the
person whom he abets.
15. The offence of abetment is also committed by „engaging in a
conspiracy for doing of a thing‟ and only if act or illegal omission takes
place pursuant to such a conspiracy. In order to constitute an offence of
abetment by conspiracy, there must be a combination of two or more
persons in the conspiracy and an act or illegal omission must take place in
pursuance of that conspiracy and in order to doing of that thing.
16. Lastly, the offence of abetment may also be committed by
„intentional aid‟. A person abets by aiding when by act done either prior
to, or at the time of the commission of an act he intends to facilitate and
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does in fact facilitate the commission thereof (explanation (2) to Section
107 of the IPC). In order to constitute abetment by aiding within the
meaning of Section 107 of the IPC, the abettor must be shown to have
intentionally aided the commission of crime. Further, the aid given must
be with the intention to facilitate the commission of the crime. However,
mere giving of aid will not make the act of abetment an offence, if the
person who gave the aid did not know that an offence was being
committed or contemplated. The intention should be to aid an offence or
to facilitate the commission of crime.
17. It is also pertinent to refer to Section 120B of the Indian Penal
Code, 1860. The provision reads as under:
120B. Punishment of criminal conspiracy
(1) Whoever is a party to a criminal conspiracy to
commit an offence punishable with
death, imprisonment for life or rigorous imprisonment
for a term of two years or upwards, shall, where no
express provision is made in this Code for the
punishment of such a conspiracy, be punished in the
same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other
than a criminal conspiracy to commit an offence
punishable as aforesaid shall be punished with
imprisonment of either description for a term not
exceeding six months, or with fine or with both.‖
18. The evidence in the offence of criminal conspiracy is usually to be
implied and inferred from the facts of each case and is a complicated
exercise since conspiracy often pertains to a common design planned in
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the mind of an individual. It is settled law that direct proof of common
intention is rarely available, and therefore, such intention is to be inferred
from the proven facts/circumstances of the case.
(i) Section 10 of the Evidence Act, 1872 states as under:
―Things said or done by the conspirator in reference
to common design where there is reasonable ground
to believe that two or more persons have conspired
together to commit an offence or an actionable wrong,
anything said, done or written by any one of such
persons in reference to their common intention, after
the time when such intention was first entertained by
anyone of them, is a relevant fact as against each of
person believed to so conspiracy as well for the
purpose of proving the existence of the conspiracy as
for the purpose of showing that any such person was a
party to it.‖
(ii) Section 65B of the Evidence Act, 1872 reads as under:
65B. Admissibility of electronic records. --
(1) Notwithstanding anything contained in this Act,
any information contained in an electronic record
which is printed on a paper, stored, recorded or
copied in optical or magnetic media produced by a
computer (hereinafter referred to as the computer
output) shall be deemed to be also a document, if the
conditions mentioned in this section are satisfied in
relation to the information and computer in question
and shall be admissible in any proceedings, without
further proof or production of the original, as
evidence of any contents of the original or of any fact
stated therein of which direct evidence would be
admissible.
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(2) The conditions referred to in sub-section (1) in
respect of a computer output shall be the following,
namely: --
(a) the computer output containing the
information was produced by the computer
during the period over which the computer
was used regularly to store or process
information for the purposes of any activities
regularly carried on over that period by the
person having lawful control over the use of
the computer;
(b) during the said period, information of the
kind contained in the electronic record or of
the kind from which the information so
contained is derived was regularly fed into
the computer in the ordinary course of the
said activities;
(c) throughout the material part of the said
period, the computer was operating properly
or, if not, then in respect of any period in
which it was not operating properly or was
out of operation during that part of the
period, was not such as to affect the
electronic record or the accuracy of its
contents; and
(d) the information contained in the
electronic record reproduces or is derived
from such information fed into the computer
in the ordinary course of the said activities.
(3) Where over any period, the function of storing
or processing information for the purposes of any
activities regularly carried on over that period as
mentioned in clause (a) of sub-section (2) was
regularly performed by computers, whether--
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(a) by a combination of computers operating
over that period; or
(b) by different computers operating in
succession over that period; or
(c) by different combinations of computers
operating in succession over that period; or
(d) in any other manner involving the
successive operation over that period, in
whatever order, of one or more computers
and one or more combinations of computers,
all the computers used for that purpose
during that period shall be treated for the
purposes of this section as constituting a
single computer; and references in this
section to a computer shall be construed
accordingly.
(4) In any proceedings where it is desired to give a
statement in evidence by virtue of this section, a
certificate doing any of the following things, that is to
say, --
(a) identifying the electronic record
containing the statement and describing the
manner in which it was produced;
(b) giving such particulars of any device
involved in the production of that electronic
record as may be appropriate for the purpose
of showing that the electronic record was
produced by a computer;
(c) dealing with any of the matters to which
the conditions mentioned in sub-section (2)
relate, and purporting to be signed by a
person occupying a responsible official
position in relation to the operation of the
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relevant device or the management of the
relevant activities (whichever is appropriate)
shall be evidence of any matter stated in the
certificate; and for the purposes of this sub-
section it shall be sufficient for a matter to be
stated to the best of the knowledge and belief
of the person stating it.
(5) For the purposes of this section, --
(a) information shall be taken to be supplied
to a computer if it is supplied thereto in any
appropriate form and whether it is so
supplied directly or (with or without human
intervention) by means of any appropriate
equipment;
(b) whether in the course of activities carried
on by any official information is supplied
with a view to its being stored or processed
for the purposes of those activities by a
computer operated otherwise than in the
course of those activities, that information, if
duly supplied to that computer, shall be
taken to be supplied to it in the course of
those activities;
(c) a computer output shall be taken to have
been produced by a computer whether it was
produced by it directly or (with or without
human intervention) by means of any
appropriate equipment.
19. While considering the electronic records as evidence and the scope
of Section 65B of the Evidence Act, the Hon‟ble Supreme Court in its
decision reported in Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, has
observed as follows:
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―15. Under Section 65-B (4) of the Evidence Act, if it
is desired to give a statement in any proceedings
pertaining to an electronic record, it is permissible
provided the following conditions are satisfied:
(a) There must be a certificate which
identifies the electronic record containing the
statement;
(b) The certificate must describe the manner
in which the electronic record was produced;
(c) The certificate must furnish the
particulars of the device involved in the
production of that record;
(d) The certificate must deal with the
applicable conditions mentioned under
Section 65-B(2) of the Evidence Act; and
(e) The certificate must be signed by a person
occupying a responsible official position in
relation to the operation of the relevant
device.
16. It is further clarified that the person need only
to state in the certificate that the same is to the best of
his knowledge and belief. Most importantly, such a
certificate must accompany the electronic record like
computer printout, compact disc (CD), video compact
disc (VCD), pen drive, etc., pertaining to which a
statement is sought to be given in evidence, when the
same is produced in evidence. All these safeguards
are taken to ensure the source and authenticity, which
are the two hallmarks pertaining to electronic record
sought to be used as evidence. Electronic records
being more susceptible to tampering, alteration,
transposition, excision, etc. without such safeguards,
the whole trial based on proof of electronic records
can lead to travesty of justice.
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17. Only if the electronic record is duly produced in
terms of Section 65-B of the Evidence Act, would the
question arise as to the genuineness thereof and in
that situation, resort can be made to Section 45-A--
opinion of Examiner of Electronic Evidence.
***
22. The evidence relating to electronic record, as
noted hereinbefore, being a special provision, the
general law on secondary evidence under Section 63
read with Section 65 of the Evidence Act shall yield to
the same. Generalia specialibus non derogant, special
law will always prevail over the general law. It
appears, the court omitted to take note of Sections 59
and 65-A dealing with the admissibility of electronic
record. Sections 63 and 65 have no application in the
case of secondary evidence by way of electronic
record; the same is wholly governed by Sections 65-A
and 65-B. To that extent, the statement of law on
admissibility of secondary evidence pertaining to
electronic record, as stated by this Court in Navjot
Sandhu case [State (NCT of Delhi) v. Navjot Sandhu,
(2005) 11 SCC 600 : 2005 SCC (Cri) 1715] , does not
lay down the correct legal position. It requires to be
overruled and we do so. An electronic record by way
of secondary evidence shall not be admitted in
evidence unless the requirements under Section 65-B
are satisfied. Thus, in the case of CD, VCD, chip, etc.,
the same shall be accompanied by the certificate in
terms of Section 65-B obtained at the time of taking
the document, without which, the secondary evidence
pertaining to that electronic record, is inadmissible.‖
20. Section 5 of the Indian Telegraph Act, 1885 (hereinafter referred to
as the "Telegraph Act") deals with the power of the Government to take
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possession of licensed telegraphs and to order interception of messages.
The relevant provision being sub-section (2) of Section 5 is reproduced
hereunder:
―5. Power for Government to take possession of
licensed telegraphs and to order interception of
messages. -
(1) xxx
(2) On the occurrence of any public emergency, or
in the interest of the public safety, the Central
Government or a State Government or any officer
specially authorised in this behalf by the Central
Government or a State Government may, if satisfied
that it is necessary or expedient so to do in the
interests of the sovereignty and integrity of India, the
security of the State, friendly relations with Foreign
States or public order or for preventing incitement to
the commission of an offence, for reasons to be
recorded in writing, by order, direct that any message
or class of messages to or from any person or class of
persons, or relating to any particular subject, brought
for transmission by or transmitted or received by any
telegraph, shall not be transmitted, or shall be
intercepted or detained, or shall be disclosed to the
Government making the order or an officer thereof
mentioned in the order:
Provided that the press messages intended to be
published in India of correspondents accredited to the
Central Government or a State Government shall not
be intercepted or detained, unless their transmission
has been prohibited under this sub-section.‖
A bare reading of the above provision shows that for the purpose of
making an order for interception of message in exercise of powers under
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Sub-section (2) of Section 5 of the Telegraph Act, the occurrence of any
public emergency or the existence of a public safety interest are the sine
qua non.
Revisional Jurisdiction and Framing of Charge
21. A preliminary question qua jurisdiction that often arises and was
raised in the instant matter at an early stage, while an order framing
charges against the accused is challenged before a Court sitting in its
Revisional Jurisdiction, is - whether the impugned order framing charges
is an interlocutory order and hence, does it attract the bar of Section
397(2) of the Code, ousting the powers of revision in relation to
interlocutory orders. The question has been settled by a catena of
judgments of the Hon‟ble Supreme Court. A basic analysis of few
landmark judgments pertaining thereto has been made hereunder.
22. The Hon‟ble Supreme Court in the case of Asian Resurfacing of
Road Agency Pvt. Ltd. v. Central Bureau of Investigation (2018) 16
SCC 299 has held that an order framing charge can be interfered under
the revisional jurisdiction. The Hon‟ble Court held as under:
―37. Thus, we declare the law to be that order framing
charge is not purely an interlocutory order nor a final
order. Jurisdiction of the High Court is not barred
irrespective of the label of a petition, be it under
Sections 397 or 482 CrPC or Article 227 of the
Constitution. However, the said jurisdiction is to be
exercised consistent with the legislative policy to
ensure expeditious disposal of a trial without the same
being in any manner hampered. Thus considered, the
challenge to an order of charge should be
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entertained in a rarest of rare case only to correct a
patent error of jurisdiction and not to reappreciate the
matter. Even where such challenge is entertained and
stay is granted, the matter must be decided on day-to-
day basis so that stay does not operate for an unduly
long period. Though no mandatory time-limit may be
fixed, the decision may not exceed two-three months
normally. If it remains pending longer, duration of
stay should not exceed six months, unless extension is
granted by a specific speaking order, as already
indicated. Mandate of speedy justice applies to the PC
Act cases as well as other cases where at trial stage
proceedings are stayed by the higher court i.e., the
High Court or a court below the High Court, as the
case may be. In all pending matters before the High
Courts or other courts relating to the PC Act or all
other civil or criminal cases, where stay of
proceedings in a pending trial is operating, stay will
automatically lapse after six months from today unless
extended by a speaking order on the above
parameters. Same course may also be adopted by civil
and criminal appellate/Revisional Courts under the
jurisdiction of the High Courts. The trial courts may,
on expiry of the above period, resume the proceedings
without waiting for any other intimation unless
express order extending stay is produced.‖
23. While discussing the same question, the Hon‟ble Supreme Court
recently in Sanjay Kumar Rai v. State of Uttar Pradesh &Anr. 2021
SCC Online SC 367 reiterated the aforementioned ruling as well as the
original position of law as laid down in Madhu Limaye v. State of
Maharashtra, (1977) 4 SCC 551 in this context, and has held that:
―16. The correct position of law as laid down in
Madhu Limaye (supra), thus, is that orders framing
charges or refusing discharge are neither
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interlocutory nor final in nature and are therefore not
affected by the bar of Section 397 (2) of CrPC. That
apart, this Court in the above-cited cases has
unequivocally acknowledged that the High Court is
imbued with inherent jurisdiction to prevent abuse of
process or to secure ends of justice having regard to
the facts and circumstance of individual cases. As a
caveat it may be stated that the High Court, while
exercising its aforestated jurisdiction ought to be
circumspect. The discretion vested in the High Court
is to be invoked carefully and judiciously for effective
and timely administration of criminal justice system.
This Court, nonetheless, does not recommend a
complete hands-off approach. Albeit, there should be
interference, may be, in exceptional cases, failing
which there is likelihood of serious prejudice to the
rights of a citizen. For example, when the contents of
a complaint or the other purported material on record
is a brazen attempt to persecute an innocent person, it
becomes imperative upon the Court to prevent the
abuse of process of law.‖
24. Thus, the issue is well-settled and the controversy qua revisional
jurisdiction is set to rest with the actual position of law being that the
order of framing charge or that of discharge is neither interlocutory nor
final and hence, do not attract the bar of Section 397 (2) of the Code. The
High Court is thus competent to entertain a revision petition against such
orders.
Framing of Charges & Order on Charge
25. The Hon‟ble Bombay High Court in the case of Samadhan
Baburao Khakare v. State of Maharashtra, 1995 SCC OnLine Bom 72
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has highlighted the objective and importance of Charge in criminal trial
in the following words:
―11. The whole purpose and object of framing
charges is to enable the defence to concentrate its
attention on the case that he has to meet, and if the
charge is framed in such a vague manner that the
necessary ingredients of the offence with which the
accused is convicted is not brought out in the charge
then the charge is not only defective but illegal. It is
no doubt that when the accused is charged with a
major offence, he can be convicted of a minor offence.
It is true that what is major offence and what is minor
offence is not defined. The gravity of offence must
depend upon the severity of the punishment that can
be inflicted, but the major and the minor offences must
be cognate offences which have the main ingredients
in common, and a man charged with one offence
which is entirely of a different nature from the offence
which is proved to have been committed by him,
cannot in the absence of a proper charge be convicted
of that offence, merely on the ground that the facts
proved constitute a minor offence. For example, a
man charged with an offence of murder cannot be
convicted for forgery or misappropriation of funds, or
such offences which do not constitute offences against
person, the reason being that the accused had no
opportunity in such a case to make defence, which
may have been open to him, if he had been charged
with the offence for which he is to be convicted.‖
26. The Hon‟ble Supreme Court has succinctly analyzed its previous
decisions with respect to framing of charge in State of
Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659 and has laid down
the following test for framing of charges:
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―30. In Antulay case [R.S. Nayak v. A.R. Antulay,
(1986) 2 SCC 716: 1986 SCC (Cri) 256] Bhagwati,
C.J., opined, after noting the difference in the
language of the three pairs of sections, that despite the
difference there is no scope for doubt that at the stage
at which the court is required to consider the question
of framing of charge, the test of ‗prima facie' case has
to be applied. According to Shri Jethmalani, a prima
facie case can be said to have been made out when the
evidence, unless rebutted, would make the accused
liable to conviction. In our view, a better and clearer
statement of law would be that if there is ground for
presuming that the accused has committed the offence,
a court can justifiably say that a prima facie case
against him exists, and so, frame a charge against him
for committing that offence.
31. Let us note the meaning of the word ‗presume'.
In Black's Law Dictionary it has been defined to mean
‗to believe or accept upon probable evidence'.
In Shorter Oxford English Dictionary it has been
mentioned that in law ‗presume' means ‗to take as
proved until evidence to the contrary is
forthcoming', Stroud's Legal Dictionary has quoted in
this context a certain judgment according to which ‗A
presumption is a probable consequence drawn from
facts (either certain, or proved by direct testimony) as
to the truth of a fact alleged.' In Law Lexicon by P.
Ramanatha Aiyar the same quotation finds place at p.
1007 of 1987 Edn.
32. The aforesaid shows that if on the basis of
materials on record, a court could come to the
conclusion that commission of the offence is a
probable consequence, a case for framing of charge
exists. To put it differently, if the court were to think
that the accused might have committed the offence it
can frame the charge, though for conviction the
conclusion is required to be that the
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accused has committed the offence. It is apparent that
at the stage of framing of a charge, probative value of
the materials on record cannot be gone into; the
materials brought on record by the prosecution has to
be accepted as true at that stage.‖
Thus, the court concerned with the framing of charges has to
merely see whether the commission of offense can be a possibility from
the evidence on record or not.
27. It is also required to be noted that the charge does not render a
conclusive finding with respect to guilt or innocence of the accused. The
charge is merely an indication to the accused about the offense for which
he is being tried for. In this regard, it is essential to take note of the ruling
of the Hon‟ble Supreme Court in Esher Singh v. State of A.P., (2004) 11
SCC 585, where the Hon‟ble Court observed:
―20. Section 2(b) of the Code of Criminal Procedure,
1973 (in short ―the Code‖) defines ―charge‖ as
follows:
‗2. (b) ‗charge' includes any head of charge when the
charge contains more heads than one;'
The Code does not define what a charge is. It is the
precise formulation of the specific accusation made
against a person who is entitled to know its nature at
the earliest stage. A charge is not an accusation made
or information given in the abstract, but an accusation
made against a person in respect of an act committed
or omitted in violation of penal law forbidding or
commanding it. In other words, it is an accusation
made against a person in respect of an offence alleged
to have been committed by him. A charge is
formulated after inquiry as distinguished from the
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popular meaning of the word as implying inculpation
of a person for an alleged offence as used in Section
224 IPC."
28. The Hon‟ble Supreme Court in Main Pal v. State of Haryana,
(2010) 10 SCC 130 observed as follows:
―17. (i) The object of framing a charge is to enable an
accused to have a clear idea of what he is being tried
for and of the essential facts that he has to meet. The
charge must also contain the particulars of date, time,
place and person against whom the offence was
committed, as are reasonably sufficient to give the
accused notice of the matter with which he is
charged.‖
Thus, what can be seen from the above extract is the fact that the
object of framing of charge is to make the accused aware about the
defense that is required to bring in through evidence and witnesses.
29. The Hon‟ble Supreme Court in the case of Santosh Kumari v.
State of J&K, (2011) 9 SCC 234 has comprehensively dealt with the
question and purpose of framing of charges as under:
―18. The object of the charge is to give the accused
notice of the matter he is charged with and does not
touch jurisdiction. If, therefore, the necessary
information is conveyed to him in other ways and
there is no prejudice, the framing of the charge is not
invalidated. The essential part of this part of law is
not any technical formula of words but the reality,
whether the matter was explained to the accused and
whether he understood what he was being tried for.
Sections 34, 114 and 149 IPC provide for criminal
liability viewed from different angles as regards
actual participants, accessories and men actuated by
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a common object or a common intention; and as
explained by a five-Judge Constitution Bench of this
Court in Willie (William) Slaney v. State of M.P. [AIR
1956 SC 116 : 1956 Cri LJ 291 : (1955) 2 SCR 1140]
SCR at p. 1189, the charge is a rolled-up one
involving the direct liability and the constructive
liability without specifying who are directly liable and
who are sought to be made constructively liable.‖
Scope of Revisional Jurisdiction - qua Order on Charge
30. The Hon‟ble Supreme Court in Rajbir Singh v. State of U.P.,
(2006) 4 SCC 51 noted that in accordance with Section 227 while
considering the discharge of an accused the High Court must ascertain
whether there is "sufficient ground for proceeding against the accused" or
there is ground for "presuming" that the offence has been committed. The
Hon‟ble Court held as under:
―9. In Stree Atyachar Virodhi Parishad v. Dilip
Nathumal Chordia [Stree Atyachar Virodhi
Parishad v. Dilip Nathumal Chordia, (1989) 1 SCC
715: 1989 SCC (Cri) 285], the Court while examining
the scope of Section 227 held as under:
'14. ... Section 227 itself contains enough
guidelines as to the scope of inquiry for the
purpose of discharging an accused. It provides
that ‗the Judge shall discharge when he
considers that there is no sufficient ground for
proceeding against the accused'. The ‗ground'
in the context is not a ground for conviction, but
a ground for putting the accused on trial. It is in
the trial, the guilt or the innocence of the
accused will be determined and not at the time
of framing of charge. The court, therefore, need
not undertake an elaborate inquiry in sifting
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and weighing the material. Nor is it necessary
to delve deep into various aspects. All that the
court has to consider is whether the evidentiary
material on record, if generally accepted, would
reasonably connect the accused with the crime.'
10. The High Court did not at all apply the relevant
test, namely, whether there is sufficient ground for
proceeding against the accused or whether there is
ground for presuming that the accused has committed
an offence. If the answer is in the affirmative an order
of discharge cannot be passed and the accused has to
face the trial. The High Court after merely observing
that ―as the firing was aimed at the other persons and
accidentally the deceased Pooja Balmiki was passing
through that way and she was hit‖ and further
observing that ―the applicant neither intended to kill
the deceased nor was she aimed at because of the
reason that she was a Scheduled Caste‖ set aside the
order by which the charges had been framed against
Respondent 2. There can be no manner of doubt that
the provisions of Section 301 IPC have been
completely ignored and the relevant criteria for
judging the validity of the order passed by the learned
Special Judge directing framing of charges have not
been applied. The impugned order is, therefore,
clearly erroneous in law and is liable to be set aside.‖
31. Additionally, at the stage of framing of charges, the Court has to
consider the material only with a view to find out if there is a ground for
"presuming" that the accused had committed the offence. The Hon‟ble
Supreme Court held in the case of Chitresh Kumar Chopra v. State
(NCT of Delhi), (2009) 16 SCC 605 as under:
―25. It is trite that at the stage of framing of charge, the
court is required to evaluate the material and
documents on record with a view to finding out if the
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facts emerging therefrom, taken at their face value,
disclose the existence of all the ingredients constituting
the alleged offence or offences. For this limited purpose,
the court may sift the evidence as it cannot be expected
even at the initial stage to accept as gospel truth all that
the prosecution states. At this stage, the court has to
consider the material only with a view to find out if
there is ground for ―presuming‖ that the accused has
committed an offence and not for the purpose of
arriving at the conclusion that it is not likely to lead to a
conviction.‖
32. In Amit Kapoor v. Ramesh Chander (2012) 9 SCC 460, the
Hon‟ble Supreme Court has elucidated on the revisional power of the
Court under Section 397:
―12. Section 397 of the Code vests the court with the
power to call for and examine the records of an
inferior court for the purposes of satisfying itself as to
the legality and regularity of any proceedings or order
made in a case. The object of this provision is to set
right a patent defect or an error of jurisdiction or law.
There has to be a well-founded error and it may not
be appropriate for the court to scrutinise the orders,
which upon the face of it bears a token of careful
consideration and appear to be in accordance with
law. If one looks into the various judgments of this
Court, it emerges that the revisional jurisdiction can
be invoked where the decisions under challenge are
grossly erroneous, there is no compliance with the
provisions of law, the finding recorded is based on no
evidence, material evidence is ignored or judicial
discretion is exercised arbitrarily or perversely. These
are not exhaustive classes, but are merely indicative.
Each case would have to be determined on its own
merits.
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13. Another well-accepted norm is that the revisional
jurisdiction of the higher court is a very limited one
and cannot be exercised in a routine manner. One of
the inbuilt restrictions is that it should not be against
an interim or interlocutory order. The Court has to
keep in mind that the exercise of revisional
jurisdiction itself should not lead to injustice ex facie.
Where the Court is dealing with the question as to
whether the charge has been framed properly and in
accordance with law in a given case, it may be
reluctant to interfere in exercise of its revisional
jurisdiction unless the case substantially falls within
the categories aforestated. Even framing of charge is
a much advanced stage in the proceedings under
CrPC.‖
33. The Hon‟ble Supreme Court in the same case has also enunciated a
set of principles which the High Courts must keep in mind while
exercising their jurisdiction under the provision:
―27. Having discussed the scope of jurisdiction under
these two provisions i.e. Section 397 and Section 482
of the Code and the fine line of jurisdictional
distinction, now it will be appropriate for us to enlist
the principles with reference to which the courts
should exercise such jurisdiction. However, it is not
only difficult but is inherently impossible to state with
precision such principles. At best and upon objective
analysis of various judgments of this Court, we are
able to cull out some of the principles to be considered
for proper exercise of jurisdiction, particularly, with
regard to quashing of charge either in exercise of
jurisdiction under Section 397 or Section 482 of the
Code or together, as the case may be:
***
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27.2. The Court should apply the test as to whether the
uncontroverted allegations as made from the record of
the case and the documents submitted therewith prima
facie establish the offence or not. If the allegations are
so patently absurd and inherently improbable that no
prudent person can ever reach such a conclusion and
where the basic ingredients of a criminal offence are
not satisfied then the Court may interfere.
27.3. The High Court should not unduly interfere. No
meticulous examination of the evidence is needed for
considering whether the case would end in conviction
or not at the stage of framing of charge or quashing of
charge.
27.4. Where the exercise of such power is absolutely
essential to prevent patent miscarriage of justice and
for correcting some grave error that might be
committed by the subordinate courts even in such
cases, the High Court should be loath to interfere, at
the threshold, to throttle the prosecution in exercise of
its inherent powers.
***
27.9. Another very significant caution that the courts
have to observe is that it cannot examine the facts,
evidence and materials on record to determine
whether there is sufficient material on the basis of
which the case would end in a conviction; the court is
concerned primarily with the allegations taken as a
whole whether they will constitute an offence and, if
so, is it an abuse of the process of court leading to
injustice.
***
27.13. Quashing of a charge is an exception to the
rule of continuous prosecution. Where the offence is
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even broadly satisfied, the court should be more
inclined to permit continuation of prosecution rather
than its quashing at that initial stage. The court is not
expected to marshal the records with a view to decide
admissibility and reliability of the documents or
records but is an opinion formed prima facie.‖
34. In the case of State of Rajasthan v. Fatehkaran Mehdu (2017) 3
SCC 198, the Hon‟ble Supreme Court has elucidated on the scope of the
interference permissible under Section 397 with regard to the framing of
a charge.
―26. The scope of interference and exercise of
jurisdiction under Section 397 CrPC has been time and
again explained by this Court. Further, the scope of
interference under Section 397 CrPC at a stage, when
charge had been framed, is also well settled. At the
stage of framing of a charge, the court is concerned not
with the proof of the allegation rather it has to focus on
the material and form an opinion whether there is
strong suspicion that the accused has committed an
offence, which if put to trial, could prove his guilt. The
framing of charge is not a stage, at which stage final
test of guilt is to be applied. Thus, to hold that at the
stage of framing the charge, the court should form an
opinion that the accused is certainly guilty of
committing an offence, is to hold something which is
neither permissible nor is in consonance with the
scheme of the Code of Criminal Procedure.‖
35. The aforementioned judgments have been upheld by the Hon‟ble
Supreme Court in the case of State of M.P. v. Deepak, (2019) 13 SCC
62. The Hon‟ble Court reiterated the same in their findings for deciding
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the scope and extent of revisional jurisdiction while considering the
question of Charge.
36. Recently, in the case of State of Rajasthan v. Ashok Kumar
Kashyap, 2021 SCC OnLine SC 314, the Hon‟ble Supreme Court held
that the evaluation of evidence on merits is not permissible at the stage of
considering the application for discharge and the same is beyond the
scope of revisional jurisdiction of the High Courts. While discharging the
accused, the High Court had gone into the merits of the case and had
considered whether on the basis of the material on record, the accused
was likely to be convicted or not. At the stage of framing of the charge
and/or considering the discharge application, the mini trial is not
permissible. The Bench held as under:
―26. Having considered the reasoning given by the
High Court and the grounds which are weighed with
the High Court while discharging the accused, we are
of the opinion that the High Court has exceeded in its
jurisdiction in exercise of the revisional jurisdiction
and has acted beyond the scope of Section 227/239
Code While discharging the accused, the High Court
has gone into the merits of the case and has
considered whether on the basis of the material on
record, the accused is likely to be convicted or not.
For the aforesaid, the High Court has considered in
detail the transcript of the conversation between the
complainant and the accused which exercise at this
stage to consider the discharge application and/or
framing of the charge is not permissible at all. As
rightly observed and held by the learned Special
Judge at the stage of framing of the charge, it has to
be seen whether or not a prima facie case is made out
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and the defence of the accused is not to be considered.
After considering the material on record including the
transcript of the conversation between the
complainant and the accused, the learned Special
Judge having found that there is a prima facie case of
the alleged offence under Section 7 of the PC Act,
framed the charge against the accused for the said
offence. The High Court materially erred in negating
the exercise of considering the transcript in detail and
in considering whether on the basis of the material on
record the accused is likely to be convicted for the
offence under Section 7 of the PC Act or not. As
observed hereinabove, the High Court was required to
consider whether a prima facie case has been made
out or not and whether the accused is required to be
further tried or not. At the stage of framing of the
charge and/or considering the discharge application,
the mini trial is not permissible. At this stage, it is to
be noted that even as per Section 7 of the PC Act, even
an attempt constitutes an offence. Therefore, the High
Court has erred and/or exceeded in virtually holding a
mini trial at the stage of discharge application.‖
37. Thus, the position of law that emerges from the above is that at the
stage of discharge/framing of charge, the Judge is merely required to sift
the evidence in order to find out whether or not there is sufficient ground
for proceeding against the accused, or in other words, is a prima facie
case made out against the accused.
38. In light of the aforesaid, it is well settled that under the provisions
of Section 397/401 of Code, the Revisional Court has to consider the
correctness, legality or propriety of any finding inter se an order and as to
the regularity of the proceedings of any inferior court.
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39. It is also established that while considering the legality, propriety
or correctness of a finding or a conclusion, normally the Revisional Court
does not dwell at length upon the facts and evidence of the case. A court
in revision considers the material only to satisfy itself about the legality
and propriety of the findings, sentence and order and refrains from
substituting its own conclusion on an elaborate consideration of evidence.
Section 482 of the Code
40. In the instant case, the Petitioner has inter alia also invoked the
inherent jurisdiction of this Court. Hence, it is pertinent to refer to the
Section 482 of the Code, which reads as under:
482. Saving of inherent powers of High Court. -
Nothing in this Code shall be deemed to limit or affect
the inherent powers of the High Court to make such
orders as may be necessary to give effect to any order
under this Code, or to prevent abuse of the process of
any Court or otherwise to secure the ends of justice.
The bare language of the provision unambiguously states that the
inherent powers of the High Court are meant to be exercised (i) to give
effect to any order under the Code; (ii) to prevent abuse of the process of
any Court; or (iii) to secure the ends of justice.
41. The aforementioned provision has been referred, analyzed and
interpreted in a catena of judgments of the Hon‟ble Supreme Court, a few
of which are referred to in the following paragraphs.
42. In the case of Kaptan Singh v. State of U.P. (2021) 9 SCC 35, the
Hon‟ble Supreme Court has held that:
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―9.1 At the outset, it is required to be noted that in the
present case the High Court in exercise of powers
under Section 482 Code has quashed the criminal
proceedings for the offences under Sections 147, 148,
149,406, 329 and 386 of IPC. It is required to be noted
that when the High Court in exercise of powers under
Section 482 Code quashed the criminal proceedings, by
the time the Investigating Officer after recording the
statement of the witnesses, statement of the complainant
and collecting the evidence from the incident place and
after taking statement of the independent witnesses and
even statement of the accused persons, has filed the
charge-sheet before the Learned Magistrate for the
offences under Sections 147, 148, 149, 406, 329 and386
of IPC and even the learned Magistrate also took the
cognizance. From the impugned judgment and order
passed by the High Court, It does not appear that the
High Court took into consideration the material
collected during the investigation/inquiry and even the
statements recorded. If the petition under Section 482
Code was at the stage of FIR in that case the
allegations in the FIR/Complaint only are required to
be considered and whether a cognizable offence is
disclosed or not is required to be considered. However,
thereafter when the statements are recorded, evidence
is collected and the charge-sheet is filed after
conclusion of the investigation/inquiry the matter
stands on different footing and the Court is required to
consider the material/evidence collected during the
investigation. Even at this stage also, as observed and
held by this Court in catena of decisions, the High
Court is not required to go into the merits of the
allegations and/or enter into the merits of the case as if
the High Court is exercising the appellate jurisdiction
and/or conducting the trial. As held by this Court in the
case of Dineshbhai Chandubhai Patel [(2018) 3 SCC
104] in order to examine as to whether factual contents
of FIR disclose any cognizable offence or not, the High
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Court cannot act like the Investigating agency nor can
exercise the powers like an Appellate Court. It is
further observed and held that question is required to
be examined keeping in view, the contents of FIR and
prima facie material, if any, requiring no proof. At such
stage, the High Court cannot appreciate evidence nor
can it draw its own inferences from contents of FIR and
material relied on. It is further observed it is more so,
when the material relied on is disputed. It is further
observed that in such a situation, it becomes the job of
the Investigating Authority at such stage to probe and
then of the Court to examine questions once the charge-
sheet is filed along with such material as to how far and
to what extent reliance can be placed on such material.
9.2 In the case of Dhruvaram Murlidhar Sonar [(2019
18 SCC 191] after considering the decisions of this
Court in Bhajan Lal [1992 Supp (1) SCC 335], it is
held by this Court that exercise of powers under Section
482 Code to quash the proceedings is an exception and
not a rule. It is further observed that inherent
jurisdiction under Section 482 Code though wide is to
be exercised sparingly, carefully and with caution, only
when such exercise is justified by tests specifically laid
down in section itself. It is further observed that
appreciation of evidence is not permissible at the stage
of quashing of proceedings in exercise of powers under
Section 482 Code Similar view has been expressed by
this Court in the case of Arvind Khanna [(2019) 10
SCC 686], Managipet [(2019) 19 SCC 87] and in the
case of XYZ [(2019) 10 SCC 337], referred to
hereinabove.‖
43. In Jitul Jentilal Kotecha v. State of Gujarat and Others, 2021
SCC OnLine SC 1045, the Hon‟ble Supreme Court has recently held
that:
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―27. It is trite law that the High Court must exercise
its inherent powers under Section 482 sparingly and
with circumspection. In the decision in Jugesh Sehgal
v. Shamsher Singh Gogi, this Court has held that,
‗[t]he inherent powers do not confer an arbitrary
jurisdiction on the High Court to act according to
whim or caprice.' In Simrikhia v. Dolley Mukherjee,
this Court in another context, while holding that the
High Court cannot exercise its inherent powers to
review its earlier decision in view of Section 362 of
the CrPC, observed that the inherent powers of the
High Court cannot be invoked to sidestep statutory
provisions. This Court held:
‗5. ...Section 482 enables the High Court to
make such order as may be necessary to give
effect to any order under the Code or to
prevent abuse of the process of any court or
otherwise to secure the ends of justice. The
inherent powers, however, as much are
controlled by principle and precedent as are
its express powers by statute. If a matter is
covered by an express letter of law, the court
cannot give a go-by to the statutory
provisions and instead evolve a new
provision in the garb of inherent
jurisdiction.'
31. Recently, in Mahendra KC v. State of Karnataka,
this Court has reiterated the well settled test to be
applied by the High Court for exercise of its powers
under Section 482 for quashing an FIR:
‗16...the test to be applied is whether the
allegations in the complaint as they stand,
without adding or detracting from the
complaint, prima facie establish the
ingredients of the offence alleged. At this
stage, the High Court cannot test the veracity
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of the allegations nor for that matter can it
proceed in the manner that a judge
conducting a trial would, on the basis of the
evidence collected during the course of
trial.‖
44. On 11th December 2021, the Hon‟ble Supreme Court while
deciding the case of State of Odisha v. Pratima Mohanty (Criminal
Appeal Nos. 1455-1456 of 2021) has comprehensively dealt with the
powers and extent of the jurisdiction of the High Court while deciding a
petition under Section 482 of the Code. The Hon‟ble Supreme Court has
held as under:
―6. ... As held by this Court in the case of State of
Haryana and Ors. vs Ch. Bhajan Lal and Ors. AIR
1992 SC 604, the powers under Section 482 Cr.P.C.
could be exercised either to prevent an abuse of
process of any court and/or otherwise to secure the
ends of justice. In the said decision this Court had
carved out the exceptions to the general rule that
normally in exercise of powers under Section 482
Code the criminal proceedings/FIR should not be
quashed. Exceptions to the above general rule are
carved out in para 102 in Bhajan Lal (supra) which
reads as under:
―102. In the backdrop of the interpretation of
the various relevant provisions of the Code
under Chapter XIV and of the principles of
law enunciated by this Court in a series of
decisions relating to the exercise of the
extraordinary power under Article 226 or the
inherent powers under Section 482 of the
Code which we have extracted and
reproduced above, we give the following
categories of cases by way of illustration
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wherein such power could be exercised either
to prevent abuse of the process of any court
or otherwise to secure the ends of justice,
though it may not be possible to lay down any
precise, clearly defined and sufficiently
channelized and inflexible guidelines or rigid
formulae and to give an exhaustive list of
myriad kinds of cases wherein such power
should be exercised.
(1) Where the allegations made in the first
information report or the complaint, even if
they are taken at their face value and
accepted in their entirety do not prima facie
constitute any offence or make out a case
against the accused.
(2) Where the allegations in the first
information report and other materials, if
any, accompanying the FIR do not disclose a
cognizable offence, justifying an investigation
by police officers under Section 156(1) of the
Code except under an order of a Magistrate
within the purview of Section155(2) of the
Code.
(3) Where the uncontroverted allegations
made in the FIR or complaint and the
evidence collected in support of the same do
not disclose the commission of any offence
and make out a case against the accused.
(4) Where the allegations in the FIR do not
constitute a cognizable offence but constitute
only a non-cognizable offence, no
investigation is permitted by a police officer
without an order of a Magistrate as
contemplated under Section 155(2) of the
Code.
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(5) Where the allegations made in the FIR or
complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that
there is sufficient ground for proceeding
against the accused.
(6) Where there is an express legal bar
engrafted in any of the provisions of the Code
or the concerned Act (under which a criminal
proceeding is instituted) to the institution and
continuance of the proceedings and/or where
there is a specific provision in the Code or
the concerned Act, providing efficacious
redress for the grievance of the aggrieved
party.
(7) Where a criminal proceeding is
manifestly attended with mala fide and/or
where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and with
a view to spite him due to private and
personal grudge.
***
6.2 It is trite that the power of quashing should be
exercised sparingly and with circumspection and in
rare cases. As per settled proposition of law while
examining an FIR/complaint quashing of which is
sought, the court cannot embark upon any enquiry as
to the reliability or genuineness of allegations made in
the FIR/complaint. Quashing of a complaint/FIR
should be an exception rather than any ordinary rule.
Normally the criminal proceedings should not be
quashed in exercise of powers under Section482 Code
when after a thorough investigation the chargesheet
has been filed. At the stage of discharge and/or
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considering the application under Section 482 Code
the courts are not required to go into the merits of the
allegations and/or evidence in detail as if conducing
the mini-trial. As held by this Court the powers under
Section482 Code is very wide, but conferment of wide
power requires the court to be more cautious. It casts
an onerous and more diligent duty on the Court.‖
45. The position of law that is well-settled, in light of the
aforementioned judgments, is that quashing should be an exception and
the Section 482 jurisdiction for the same should be exercised sparingly,
with circumspection and in rarest of the rare cases. Further, while
examining an FIR for quashing, the court cannot (a) enter into the merits
of the case, (b) embark upon a roving enquiry or (c) conduct a trial as to
the reliability or genuineness of allegations made in the FIR, nor (d) it has
to see the probability of conviction on the basis of evidence on record -
what is required is to be seen that whether there has been an abuse of
process or interests of justice requires the proceedings to be quashed.
46. It is also settled that although the test at the time of framing of
charges is not that of the satisfaction of possibility and probability of
accused having committed the offence and not of the proof of his
culpability beyond reasonable doubt, yet while framing the evidence
some material must still be available so as to appeal to the judicial
conscience on which a prima facie case is established against the accused.
Speedy Trial
47. The Constitution Bench judgment of the Hon‟ble Supreme Court in
Abdul Rehman Antulay v. R.S. Nayak (1992) 1 SCC 225 has laid down
the detailed guidelines with respect to speedy trial and observed as under:
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―86. In view of the above discussion, the following
propositions emerge, meant to serve as guidelines. We
must forewarn that these propositions are not
exhaustive. It is difficult to foresee all situations. Nor
is it possible to lay down any hard and fast rules.
These propositions are:
(1) Fair, just and reasonable procedure implicit in
Article 21 of the Constitution creates a right in the
accused to be tried speedily. Right to speedy trial is
the right of the accused. The fact that a speedy trial
is also in public interest or that it serves the social
interest also, does not make it any the less the right
of the accused. It is in the interest of all concerned
that the guilt or innocence of the accused is
determined as quickly as possible in the
circumstances.
(2) Right to speedy trial flowing from Article 21
encompasses all the stages, namely the stage of
investigation, inquiry, trial, appeal, revision and re-
trial. That is how, this Court has understood this
right and there is no reason to take a restricted
view.
(3) The concerns underlying the right to speedy trial
from the point of view of the accused are:
(a) the period of remand and pre-conviction
detention should be as short as possible. In
other words, the accused should not be
subjected to unnecessary or unduly long
incarceration prior to his conviction;
(b) the worry, anxiety, expense and
disturbance to his vocation and peace,
resulting from an unduly prolonged
investigation, inquiry or trial should be
minimal; and
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(c) undue delay may well result in impairment
of the ability of the accused to defend himself,
whether on account of death, disappearance
or non-availability of witnesses or otherwise.
(4) At the same time, one cannot ignore the fact that
it is usually the accused who is interested in
delaying the proceedings. As is often pointed out,
―delay is a known defence tactic‖. Since the burden
of proving the guilt of the accused lies upon the
prosecution, delay ordinarily prejudices the
prosecution. Non-availability of witnesses,
disappearance of evidence by lapse of time really
work against the interest of the prosecution. Of
course, there may be cases where the prosecution,
for whatever reason, also delays the proceedings.
Therefore, in every case, where the right to speedy
trial is alleged to have been infringed, the first
question to be put and answered is -- who is
responsible for the delay? Proceedings taken by
either party in good faith, to vindicate their rights
and interest, as perceived by them, cannot be treated
as delaying tactics nor can the time taken in
pursuing such proceedings be counted towards
delay. It goes without saying that frivolous
proceedings or proceedings taken merely for
delaying the day of reckoning cannot be treated as
proceedings taken in good faith. The mere fact that
an application/petition is admitted and an order of
stay granted by a superior court is by itself no proof
that the proceeding is not frivolous. Very often these
stays are obtained on ex parte representation.
(5) While determining whether undue delay has
occurred (resulting in violation of Right to Speedy
Trial) one must have regard to all the attendant
circumstances, including nature of offence, number
of accused and witnesses, the workload of the court
concerned, prevailing local conditions and so on --
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what is called, the systemic delays. It is true that it is
the obligation of the State to ensure a speedy trial
and State includes judiciary as well, but a realistic
and practical approach should be adopted in such
matters instead of a pedantic one.
(6) Each and every delay does not necessarily
prejudice the accused. Some delays may indeed
work to his advantage. As has been observed by
Powell, J. in Barker [33 L Ed 2d 101] ―it cannot be
said how long a delay is too long in a system where
justice is supposed to be swift but deliberate‖. The
same idea has been stated by White, J.
in U.S. v. Ewell [15 L Ed 2d 627] in the following
words:
‗... the Sixth Amendment right to a speedy
trial is necessarily relative, is consistent with
delays, and has orderly expedition, rather
than mere speed, as its essential ingredients;
and whether delay in completing a
prosecution amounts to an unconstitutional
deprivation of rights depends upon all the
circumstances.'
However, inordinately long delay may be taken as
presumptive proof of prejudice. In this context, the
fact of incarceration of accused will also be a
relevant fact. The prosecution should not be allowed
to become a persecution. But when does the
prosecution become persecution, again depends
upon the facts of a given case.
(7) We cannot recognize or give effect to, what is
called the ‗demand' rule. An accused cannot try
himself; he is tried by the court at the behest of the
prosecution. Hence, an accused's plea of denial of
speedy trial cannot be defeated by saying that the
accused did at no time demand a speedy trial. If in a
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given case, he did make such a demand and yet he
was not tried speedily, it would be a plus point in his
favour, but the mere non-asking for a speedy trial
cannot be put against the accused. Even in USA, the
relevance of demand rule has been substantially
watered down in Barker [33 L Ed 2d 101] and other
succeeding cases.
(8) Ultimately, the court has to balance and weigh
the several relevant factors -- ‗balancing test' or
‗balancing process' -- and determine in each case
whether the right to speedy trial has been denied in
a given case.
(9) Ordinarily speaking, where the court comes to
the conclusion that right to speedy trial of an
accused has been infringed the charges or the
conviction, as the case may be, shall be quashed.
But this is not the only course open. The nature of
the offence and other circumstances in a given case
may be such that quashing of proceedings may not
be in the interest of justice. In such a case, it is open
to the court to make such other appropriate order --
including an order to conclude the trial within a
fixed time where the trial is not concluded or
reducing the sentence where the trial has concluded
-- as may be deemed just and equitable in the
circumstances of the case.
(10) It is neither advisable nor practicable to fix any
time-limit for trial of offences. Any such rule is
bound to be qualified one. Such rule cannot also be
evolved merely to shift the burden of proving
justification on to the shoulders of the prosecution.
In every case of complaint of denial of right to
speedy trial, it is primarily for the prosecution to
justify and explain the delay. At the same time, it is
the duty of the court to weigh all the circumstances
of a given case before pronouncing upon the
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complaint. The Supreme Court of USA too has
repeatedly refused to fix any such outer time-limit in
spite of the Sixth Amendment. Nor do we think that
not fixing any such outer limit in effectuates the
guarantee of right to speedy trial.
(11) An objection based on denial of right to speedy
trial and for relief on that account, should first be
addressed to the High Court. Even if the High Court
entertains such a plea, ordinarily it should not stay
the proceedings, except in a case of grave and
exceptional nature. Such proceedings in High Court
must, however, be disposed of on a priority basis.‖
48. It is also pertinent to point out that these guidelines have
subsequently been upheld by a seven-judge bench of the Hon‟ble
Supreme Court in P. Ramachandra Rao v. State of Karnataka (2002) 4
SCC 578. These guidelines were further applied by the Hon‟ble Supreme
Court in the subsequent decision of Pankaj Kumar v. State of
Maharashtra (2008) 16 SCC 117, wherein the court laid down the
following test with regard to the application of the guidelines:
―23. In every case, where the right to speedy trial is
alleged to have been infringed, the court has to
perform the balancing act upon taking into
consideration all the attendant circumstances,
enumerated above, and determine in each case
whether the right to speedy trial has been denied in a
given case. Where the court comes to the conclusion
that the right to speedy trial of an accused has been
infringed, the charges or the conviction, as the case
may be, may be quashed unless the court feels that
having regard to the nature of offence and other
relevant circumstances, quashing of proceedings may
not be in the interest of justice. In such a situation, it
is open to the court to make an appropriate order as it
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may deem just and equitable including fixation of time
for the conclusion of trial.‖
49. In the instant case, the trial has been pending for about ten years,
since the institution of the case in the year 2011, thus, rendering the
process itself as a punishment and thereby prejudicing the petitioner.
Another important aspect that needs to be considered is that the main
accused has already been discharged by the Coordinate Bench of this
Hon‟ble Court vide its order dated 12th February, 2018.
50. For proper adjudication of the case, it is also pertinent to refer to
the relevant paragraph of the impugned order dated 1 st June 2012, which
is stated hereunder:
―135. Therefore, I am of the opinion that the
conversation of accused J.E Singh with Accused
Sukhvinder Singh and accused Ketan Desai read
together will point out that when accused J.E Singh is
talking about confirmation of the plan which
ultimately lead to delivery and recovery of Rs. 2
crores, the chain of events is disclosed through the
conversation discussed above. A perusal of phone
calls between accused J.E Singh and accused
Sukhivinder Singh make it clear that when accused
J.E Singh tells accused Sukhivinder Singh that he must
tell a fixed date as otherwise it causes him
embarrassment, and that after conforming the date he
asks accused Sukhivinder Singh whether he should tell
Dr. Sahab. These conversations which ultimately lead
to recovery of Rs. 2 crores from the residence of
accused J.E Singh give rise to grave suspicion that
accused J.E Singh had taken this illegal gratification
for further payment to accused Ketan Desai for
recommending renewal for admission of 4th batch
ignoring the deficiency of an auditorium having
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capacity of 500. The recommendation was made on
05.04.2010 to the concerned Health Ministry however,
the same was signed by the Health Minister on
21.04.2010. Therefore, the entire circumstances give
rise to grave suspicion against accused J.R Singh. I
am of the opinion that prima facie charge u/s. 120 B
IPG r/w Section 7, 8, 12 and 13(1)(d) r/w 13(2), and
individual charge under Section 8 of Prevention of
Corruption Act, 1988 is made out against him.
51. Relevant paragraphs of the impugned order dated 4th June 2012 are
reproduced hereunder:
―I, Swarana Kanta Sharma, Special Judge, CBI-05,
Patiala House Courts, New Delhi do herewith charge
you accused:
Sh. Jatinder Pal Singh, S/o Sh. Sampuran Singh Giani,
R/o D-6/13, Vasant Vihar, New Delhi as under: -
That you while acting as a middle man between Dr.
Ketan Desai and Gian Sagar Medical College &
Hospital, Patiala was contacted by your co-accused
Dr. Sukhvinder Singh, Vice Chairman, Gian Sagar
Educational & Charitable Trust, Mohali, Punjab and
discussed the issue of recognition of the courses and
grant of permission pertaining to Gian Sagar Medical
College & Hospital Patiala as mandated by MCI Act
& Regulations for the admission and you accepted
illegal gratification of Rs. Two crores from Dr.
Kamaljeet Singh as a motive or reward for inducing
Dr. Ketan Desai by corrupt or illegal means to favour
Gain Sagar Medical College & Hospital and thereby
you committed an offence u/s 8 of Prevention of
Corruption Act 1988 and within my cognizance.
And I hereby direct that you be tried on the aforesaid
charge by this court.‖
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52. It was vehemently argued by the learned counsel for Petitioner that
the aforesaid charges were framed against the petitioner without any
legally admissible evidence. Therefore, in such a case, allowing the
prosecution to proceed further on charges impugned in the petition shall
only be a wastage of precious time and resources of the entire criminal
justice machinery and would amount to an abuse of process of the Court,
and, therefore, in order to secure the ends of justice, the proceedings qua
the petitioner should be quashed.
53. In the instant case, the material brought against the petitioner is the
audio recording of conversation between the accused Sukhwinder Singh
and the Petitioner, as well as the accused Ketan Desai and the Petitioner.
As per the Petitioner, the alleged illegally intercepted telephonic
recordings contained in the charge-sheet and all material collected on the
basis of such alleged illegally intercepted telephonic recordings ought to
be set at naught. It is the case of petitioner that it is settled law that if the
foundation is removed, the structure falls and that the legal maxim ―sub
lato fundamento cadit opus‖ squarely applies in the instant case.
54. It has also been vehemently argued by the learned counsel
appearing on behalf of petitioner that the Court below has not taken into
consideration of the fact that the mandatory requirements laid down by
law for placing the reliance on such audio conversations have not been
fulfilled by the Investigating Authority. It is argued that illegal tapping of
telephone conversation being a violation of the right to privacy is now
accepted and reinforced as a fundamental right protected under Article 21
of the Constitution of India, by a nine Judge Constitution Bench decision
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in K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, by overruling
the earlier Constitution Bench judgments including M.P. Sharma v.
Satish Chandra, AIR 1954 SC 300, which did not consider right to
privacy as a fundamental right. It has now been held by the Constitution
Bench in K.S. Puttaswamy (Supra) that the right to privacy is protected
by the Constitution as an intrinsic part of the right to life and personal
liberty under Article 21 of the Constitution of India and as a part of the
freedom guaranteed by Part-III of the Constitution of India.
55. In the case of People's Union for Civil Liberties v. Union of
India, (1997) 1 SCC 301 (hereinafter referred to as "PUCL"), a two
Judge Bench of the Hon‟ble Supreme Court had held that:
―18. The right to privacy - by itself - has not been
identified under the Constitution. As a concept it may
be too broad and moralistic to define it judicially.
Whether right to privacy can be claimed or has been
infringed in a given case would depend on the facts of
the said case. But the right to hold a telephone
conversation in the privacy of one's home or office
without interference can certainly be claimed as
―right to privacy‖. Conversations on the telephone
are often of an intimate and confidential character.
Telephone-conversation is a part of modern man's life.
It is considered so important that more and more
people are carrying mobile telephone instruments in
their pockets. Telephone conversation is an important
facet of a man's private life. Right to privacy would
certainly include telephone-conversation in the
privacy of one's home or office. Telephone-tapping
would, thus, infract Article 21 of the Constitution of
India unless it is permitted under the procedure
established by law.
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***
28. Section 5(2) of the Act permits the interception of
messages in accordance with the provisions of the
said Section. ―Occurrence of any public emergency‖
or ―in the interest of public safety‖ are the sine qua
non for the application of the provisions of Section
5(2) of the Act. Unless a public emergency has
occurred or the interest of public safety demands, the
authorities have no jurisdiction to exercise the powers
under the said Section. Public emergency would mean
the prevailing of a sudden condition or state of affairs
affecting the people at large calling for immediate
action. The expression ―public safety‖ means the state
or condition of freedom from danger or risk for the
people at large. When either of these two conditions
are not in existence, the Central Government or a
State Government or the authorised officer cannot
resort to telephone tapping even though there is
satisfaction that it is necessary or expedient so to do
in the interests of sovereignty and integrity of India
etc. In other words, even if the Central Government is
satisfied that it is necessary or expedient so to do in
the interest of the sovereignty and integrity of India or
the security of the State or friendly relations with
sovereign States or public order or for preventing
incitement to the commission of an offence, it cannot
intercept the messages or resort to telephone tapping
unless a public emergency has occurred or the interest
of public safety or the existence of the interest of
public safety requires. Neither the occurrence of
public emergency nor the interest of public safety are
secretive conditions or situations. Either of the
situations would be apparent to a reasonable person.
29. The first step under Section 5(2) of the Act,
therefore, is the occurrence of any public emergency
of the existence of a public safety interest. Thereafter
the competent authority under Section 5(2) of the Act
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is empowered to pass an order of interception after
recording its satisfaction that it is necessary or
expedient so to do in the interest of (i) sovereignty and
integrity of India, (ii) the security of the State, (iii)
friendly relations with foreign States, (iv) public order
or (v) for preventing incitement to the commission of
an offence. When any of the five situations mentioned
above to the satisfaction of the competent authority
require then the said authority may pass the order for
interception of messages by recording reasons in
writing for doing so.‖
56. After the judgment in PUCL (Supra) and before the judgment
in K. S. Puttaswamy (Supra), Rules were framed by the Central
Government. Relevant Rules introduced by G.S.R. 193(4) dated 1st March
2007 (w.e.f. 12th March 2007) read as follows:
―419. Interception or monitoring of telephone
messages- (1) It shall be lawful for the Telegraph
Authority to monitor or intercept a message or
messages transmitted through telephone, for the
purpose of verification of any violation of these rule
or for the maintenance of the equipment.
419-A...
***
(2) Any order issued by the competent authority under
sub-rule (1) shall contain reasons for such direction
and a copy of such order shall be forwarded to the
concerned Review Committee within a period of seven
working days.
***
(16) The Central Government and the State
Government, as the case may be, shall constitute a
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Review Committee. The Review Committee to be
constituted by the Central Government shall consist of
the following, namely:
a) Cabinet Secretary -- Chairman
b) Secretary to the Government of India In-
charge, Legal Affairs - Member
c) Secretary to the Government of India,
Department of Telecommunications --
Member
The Review Committee to be constituted by a State
Government shall consist of the following, namely:
a) Chief Secretary -- Chairman
b) Secretary Law/Legal Remembrance In-
charge, Legal Affairs -- Member
c) Secretary to the State Government (other
than the Home Secretary) -- Member
(17) The Review Committee shall meet at least once in
two months and record its findings whether the
directions issued under sub-rule (1) are in accordance
with the provisions of sub-section (2) of Section 5 of
the said Act. When the Review Committee is of the
opinion that the directions are not in accordance with
the provisions referred to above it may set aside the
directions and orders for destruction of the copies of
the intercepted message or class of messages.
(18) Records pertaining to such directions for
interception and of intercepted messages shall be
destroyed by the relevant competent authority and the
authorized security and Law Enforcement Agencies
every six months unless these are, or likely to be,
required for functional requirements.‖
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57. As per Rule 419A of the Rules framed under the Telegraph Act,
the order of the Home Secretary granting permission to intercept
telephonic conversations is to be forwarded to the Review Committee
within seven days of passing the order, for the purpose of being reviewed
by the Committee. This Court does not find any material on record to
establish that any review of the order of the Home Secretary was
conducted in compliance of the aforesaid rules framed under the
Telegraph Act. Therefore, this Court is convinced that the Special Judge
while passing the impugned orders has totally ignored the provisions of
the aforesaid rules.
58. This Court is of the view that as per Section 5 (2) of the Telegraph
Act, an order for interception can be issued on either the occurrence of
any public emergency or in the interest of the public safety as per the law
laid down by the Hon‟ble Supreme Court in the case of PUCL (Supra).
After the perusal of the records, this Court is satisfied that in peculiar
facts of the instant case, the mandatory requirements laid down by law for
placing reliance on such audio conversations, have not been fulfilled. It is
an admitted position that Rule 419(A)(17) which provides for destruction
of intercepted message also adopt the said directions. The court below
while passing the impugned orders has also ignored the settled legal
positions and directions of the Hon'ble Supreme Court.
59. It is also relevant to add here that if the directions of the Hon‟ble
Supreme Court in PUCL (Supra) which are now re-enforced and
approved by the Hon‟ble Supreme Court in K.S. Puttaswamy (Supra) as
also the mandatory rules in regard to the illegally intercepted
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messages/audio conversations pursuant to an order having no sanction of
law, are permitted, it would lead to manifest arbitrariness and would
promote the scant regard to the procedure and fundamental rights of the
citizens, and law laid down by the Hon‟ble Supreme Court.
60. It is also argued that Court below has ignored the fact that there
was no illegality in the grant of permission to GSMCH as per the relevant
Medical Council of India Regulations and Rules of 1999 (hereinafter
"MCI Regulations"). There was no requirement of an auditorium for at
the stage of admission of the 4th Batch of MBBS. The auditorium was
required at the time of admission in 5th year of MBBS course, whereas the
recommendation in question was granted for the admission in 4th year of
MBBS course. If the auditorium was not required as per the MCI
Regulations, then as per the allegation of the CBI that the petitioner was
acting as a conduit between Dr. Sukhwinder Singh, Dr. Kamaljeet Singh
and Dr. Ketan Desai, the erstwhile President of MCI, reaches no logical
conclusion since the alleged bribe was to be given qua the requirement of
auditorium for the 4th Batch of MBBS course.
61. The documents of the Ministry of Health & Family Welfare in
reference to Union Heath Minister‟s note and subsequent orders of the
department and the reports of the inspection team have also been ignored
by the Court below while passing the impugned orders. As per these
documents, the Union Health Minister had circulated one note on 25 th
April 2010, wherein taking into consideration the FIR filed by
Respondent/CBI and subsequent developments, he directed the
department that a three-member fact-finding team may immediately be
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constituted by the Union Health Ministry to inspect the college and
submit a report within a week. On 26th April 2010, a three-member
committee of following members was constituted by the Ministry of
Health, Government of India. The said committee of the Union Health
Ministry had conducted the inspection on 29th April, 2010 and had
submitted its report on 3rd May, 2010 to the Ministry of Health, Govt. of
India. In conclusion the committee in its reports had stated as under:
―In conclusion, the inquiry committee is of the view
that the recommendations made by the Executive
Committee of the MCI at its meeting on 5.4.2010 to
grant permission for admission of 100 students in the
year 2010-11 for the 4 batch of MBBS students at the
Gian Sagar Medical College & Hospital, Patiala was
justified on the basis of the report of the council
Inspectors and the compliance report of the Principal.
The observations made in the first report have been
rectified. Further, the existing facilitates and faculty
at Gian Sagar Medical College & Hospital appear
more than adequate to conduct undergraduate
medical teaching. However, there is scope for
improvement of clinical and laboratory services
within the existing infrastructure.‖
62. On 15th May 2010, the MCI was superseded by way of an
amendment in the MCI Act and replaced by Boards of Governors of
seven persons. As per this amendment, the Board of Governors were to
carry out the function as a Council. The Board of Governors had also
conducted the inspection on 16th-17th June, 2010. In this inspection report
as well, it is stated that the auditorium is not available and is required at
the time of admission of 5th batch of MBBS students. The Board of
Governors also after considering the said report had decided to grant the
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permission to admit the 4th Batch of 100 MBBS students in said college
for the academic year 2010-11 and accordingly, the permission letter was
issued on 12th July, 2010. These facts and documents were placed on
record before the Court below by the petitioner, but the same have not
been considered while passing the impugned orders.
63. In the case of Nitya Dharmananda @K. Lenin and Anr. v. Gopal
Sheelum Reddy, (2018) 2 SCC 93, the Hon‟ble Supreme Court has held
as under:
―8. Thus, it is clear that while ordinarily the Court
has to proceed on the basis of material produced with
the charge-sheet for dealing with the issue of charge
but if the court is satisfied that there is material of
sterling quality which has been withheld by the
investigator/prosecutor, the court is not debarred
from summoning or relying upon the same even if
such document is not a part of the charge-sheet. It
does not mean that the defence has a right to invoke
Section 91 CrPC dehors the satisfaction of the court,
at the stage of charge.‖
In view of the above, the Court could have summoned or relied
upon the relevant documents notwithstanding the fact that they were not a
part of the charge-sheet. However, the order of charge not having allowed
additional documents apart from the charge-sheet does not follow the law
laid down in the judgment.
64. It has also been argued by the learned counsel appearing on behalf
of the petitioner that the amount seized in the house of the petitioner was
duly explained and accounted for. The said amount was the part of the
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advance received by petitioner towards sale of the land situated at Village
Maghrauli Khadar, Dospur Pargana Dadri, District Faridabad. It is also
argued that the said facts have been corroborated by the witnesses who
were involved in the above transaction. The source of money was also
explained before the Income Tax Authorities along with the evidence.
Learned counsel appearing on behalf of respondent/CBI has failed to
produce any evidence to establish the money trail or establish any
connection with the seized money and the allegations made in the
chargesheet except the intercepted telephonic conversations between the
accused Sukhwinder Singh and the petitioner, as well as the accused
Ketan Desai and the petitioner.
65. This Court is of the view that the intercepted telephonic
conversations are insufficient to fulfil the requirement of Section 107 IPC
so as to establish a prima facie case that the petitioner committed the
offence of abetment as specified under Section 12 of PC Act and other
offences as alleged in the chargesheet.
66. It is vehemently argued by the learned counsel appearing on behalf
of petitioner that before filing the chargesheet against the petitioner, no
prior approval of Director, CBI has been obtained by the Investigating
Officer. The chargesheet in the case was filed without prior approval or
sanction of the Director of CBI as mandated by the CBI Manual (Crime).
It is submitted that in the absence of prior approval by the Director, the
chargesheet could not have been filed and the proceedings before the
Learned Special Judge were void ab initio and without the jurisdiction.
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67. On the query made by this Court, learned counsel appearing on
behalf of respondent/CBI has not been able to reply that whether prior
direction/approval of Director has been obtained by the CBI as per the
CBI Manual (Crime) and he had prayed for some time to file written
submissions, after obtaining instructions from the department. But the
same has not been filed by the learned counsel appearing on behalf of
respondent/CBI.
68. The Court below while passing the impugned order had also not
considered the fact whether the prior approval of the Director, CBI has
been obtained as mandated by the CBI Manual (Crime), as well as
ignored the judgment passed by the Coordinate Bench of this Court in
Ripun Bora v. State, (Supra). The Court has held as under:
―39. It has been vehemently argued by the counsel
for petitioner that the trap had been conducted
without the authority of any CBI Director and thus,
the trap is illegal. It has been further argued that the
complainant Sh. A.B. Gupta has himself acted as an
entrapper or the investigating officer and himself
organized the entire trap which is in violation of law.
The counsel has placed reliance upon Annexure 6-A of
the CBI Manual to aver that a PE/RC can be
registered against present and former Ministers of
Central/State governments only by a CBI Director and
only a CBI director has the power to take decision as
regards the verification of source information/
complaint against such Ministers. However, in the
present case the CBI Director was kept in dark and
the trap laid down against the petitioner was not
under the authority of any CBI Director. I find force
in the argument advanced by the counsel for
petitioner. Para 8.5 of the CBI Manual deals with the
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complaints for which no verification is required but
para 8.6 of the Manual deals with complaints where
verification should be taken up. Furthermore, para 8.8
of the CBI Manual categorically states that a
complaint received against a Minister or former
Minister of Union Government must be put up to the
Director, CBI for appropriate orders. However, in the
present case, there was no authorization by the CBI
Director to lay a trap against the petitioner nor was
any verification conducted. In fact, a perusal of the
complaint makes it evident that while 7 copies of the
complaint were forwarded to different officials of the
CBI; no copy was forwarded to the Director who is
the official empowered to deal with complaint against
Ministers. The relevant paras are reproduced as
under:
'Complaints in which Verification should
be taken up
8.6 The following categories of complaints
may be considered fit for verification:
i. Complaints pertaining to the subject-
matters which fall within the purview
of CBI either received from official
channels or from well-established and
recognized public organizations or
from individuals who are known and
who can be traced and examined.
ii. Complaints containing specific and
definite allegations involving
corruption or serious misconduct
against public servants etc., falling
within the ambit of CBI, which can be
verified.
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8.7 If any complaint against a Minister or
former Minister of the Union Government,
or the Union Territory is received in any
Branch, it should be put up to the Director,
CBI, for appropriate orders. The relevant
file of the Branch should remain in the
personal custody of SP concerned. In case
the complaints are received against
members of lower judiciary these may be
forwarded to the Registrar of the High
Court concerned and the complaints
received against members of higher
judiciary may be forwarded to Registrar
General of Supreme Court through the
Joint Director (Policy).'
40. As regards the contention of the counsel for
petitioner that a second FIR should have been
registered for the incident that occurred on
03.06.2008, I do not find any force in the aforesaid
contention in the light of the law laid by the apex
Court in TT Anthony v. State of Kerala reported at
(2001) 6 SCC 181 wherein it has been held that there
cannot be a second FIR on receipt of every subsequent
information in respect of the same cognizable offence
or the same occurrence or incident giving rise to one
or more cognizable offences.
41. Thus, in the light of the observations made
above, the chargesheet RC AC 12008 A0004 and the
proceedings emanating therefrom are hereby quashed
as I am of the view that the proceedings have been
initiated against the petitioner in utter abuse of the
process of law and the quashing thereof would secure
the ends of justice."
69. It is also argued by the learned counsel appearing on behalf of
petitioner that the Court below has also failed to take into consideration
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while passing the impugned orders that sanction was not taken from the
competent authority in respect of the approval of Dr. Suresh C. Shah.
Therefore, the cognizance taken by the Court below is bad in law.
70. As per Section 19(l)(a) of the PC Act, it is mandatory to commence
prosecution only after sanction from the competent authority has been
obtained. In absence of such sanction, Dr. Suresh C. Shah could not have
been made an accused. If he could not have been made an accused, it
follows, as a natural corollary that he could not have been made an
approver. If he could not be made an approver, then the evidence
tendered by Dr. Suresh C. Shah is vitiated a nullity in the eyes of the law.
71. In the case of State of Goa v. Babu Thomas, (Supra), the Hon‟ble
Supreme Court has held as under:
―12. As already noticed, the sanction order is not a
mere irregularity, error or omission. The first
sanction order dated 2-1-1995 was issued by an
authority that was not a competent authority to have
issued such order under the Rules. The second
sanction order dated 7-9-1997 was also issued by an
authority, which was not competent to issue the same
under the relevant rules, apart from the fact that the
same was issued retrospectively w.e.f. 14-9-1994,
which is bad. The cognizance was taken by the Special
Judge on 29-5-1995. Therefore, when the Special
Judge took cognizance on 29-5-1995, there was no
sanction order under the law authorising him to take
cognizance. This is a fundamental error which
invalidates the cognizance as without jurisdiction.‖
72. In the case of State of Karnataka v. C. Nagarajswamy, (2005) 8
SCC 370, the Hon‟ble Supreme Court has held as under:
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"14. Ordinarily, the question as to whether a proper
sanction has been accorded for prosecution of the
accused persons or not is a matter which should he
dealt with at the stage of taking cognizance. But in a
case of this nature where a question is raised as to
whether the authority granting the sanction was
competent therefor or not, at the stage of final
arguments after trial, the same may have to be
considered having regard to the terms and conditions
of service of the accused for the purpose of
determination as to who could remove him from
service.
15. Grant of proper sanction by a competent
authority is a sine qua non for taking cognizance of
the offence. It is desirable that the question as regard
sanction may be determined at an early stage. [See
Ashok Sahu Vs. Gokul Saikia and Another, 1990
(Supp) SCC41 and Birendra K. Singh Vs. State of
Bihar, (2000) 8 SCCC 498; JT 2000 (8) SC 248]
16. But, even if a cognizance of the offence is taken
erroneously and the same comes to the court's notice
at a later stage a finding to that effect is permissible.
Even such a plea can be taken for the first time before
an appellate court. [See B. Saha and Others Vs.M.S.
Kochar, (1979) 4 SCC 177, para 13 and K. Kalimuthu
Vs. State by DSP, (2005) 4 SCC 512)."
73. Thus, the principle that clearly emerges from the aforesaid
discussion is that the sanction is a condition precedent for the prosecution
of public servants under Section 19(1)(a) of the PC Act. Due to lack of
sanction and hence, the lack of jurisdiction caused thereby, the evidence
of Dr. Suresh C. Shah, who was made the sole witness of framing of
charge against the petitioner is vitiated and the same is non-est in the eyes
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of law. However, the Court below has failed to consider the said fact
while passing the impugned orders.
CONCLUSION
74. The entire controversy has arisen out of an alleged bribery made
for allowing the admissions into the 4th Batch of MBBS of the GSMCH,
Patiala by bypassing the alleged deficiencies in the process. The
Petitioner is accused of having acted as a middleman in the alleged
bribery. However, no direct or indirect evidence implicating the petitioner
is available on record that can be legally relied on to proceed with the
matter. The evidence collected and produced by the investigation agency
before the Court below is fraught with illegalities and no sufficient cause
is made to proceed with the case qua the petitioner for the reasons as
detailed hereunder:
i) The main basis of the matter for which the bribe was
allegedly given i.e., the auditorium was not actually required
to be constructed as a condition precedent for conducting
admissions of the 4th batch of MBBS course. The factum
has been verified by the appropriate authorities at various
stages as stated above, hence there is no rationale of
committing the alleged offence of giving of bribe.
ii) Further, the Approver on the basis of whose statement
petitioner has been made an accused, was impleaded in the
case without sanction from the appropriate authorities and
his statement is thus inadmissible.
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iii) Nothing as alleged in the recorded conversation intercepted
by the investigating agency forms direct basis or has any
connection whatsoever with the need for bribery, nor is there
any rationale for offering of the alleged bribe. The recovery
made has also been explained and accounted for by the
Petitioner with evidence as being a part of the advance
received by the Petitioner in lieu of sale of his village land.
iv) Tape records of the calls intercepted in the instant case are
not admissible since the due procedure for such interception
as mandated by the Telegraph Act and the Rules framed
thereunder has not been followed. Further, even the same has
not been verified in the FSL report. No further
witness/evidence to implicate the petitioner is on record.
v) Additionally, the public servant who is alleged to have been
involved in the said transaction has already been discharged
and cannot, therefore, be prosecuted under the PC Act.
Thus, in an offence alleging conspiracy, where the main
conspirator has been discharged and in the absence of evidence
implicating the petitioner as a co-conspirator alleged to be a middle-man,
there is no point in continuing with the case and keep the entire criminal
justice machinery running endlessly especially in light of the fact that the
criminal proceedings had been initiated ten years back and has stayed
pending ever since.
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75. It is also a settled law that when the allegations against an accused
do not constitute an offence, even if such allegations are presumed to be
true, a Court can exercise its powers under Section 482 of the Code to
quash the impugned criminal proceedings. However, in doing so, the
Court must not undertake a „mini-trial‟ or roving enquiry.
76. Judged by that standard, upon a perusal of the contentions raised as
well as the record, specifically - the evidence, the chargesheet as well as
the orders on charge, this Court is of the view that it is necessary to
intervene by exercising the revisional and inherent jurisdiction vested in
this Court to avoid travesty of justice and abuse of process of the court,
because:
(a) The most relevant piece of evidence relied upon by the
prosecution, i.e., the copy of the voice-recording of the telephonic
conversation allegedly involving the petitioner, is not even
admissible in light of the judgment of the Hon‟ble Supreme Court
in the case of Anvar P.V. (Supra), the same ratio was followed by
this Court in its judgment dated 20th November, 2014 in Ankur
Chawla v. CBI, Crl. M. C. No. 2455/2012, and it was held that:
―16. To test the correctness of the aforesaid
observations of the Trial Court, it has to be kept in
mind that any electronic record is admissible in
evidence only when it is in accordance with the
procedure prescribed under Section 65B of the
Evidence Act, 1872....‖
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―18. Since audio and video CDs in question are
clearly inadmissible in evidence, therefore, Trial
Court has erroneously relied upon them to conclude
that a strong suspicion arises regarding petitioners
criminally conspiring with co-accused to commit the
offence in question. Thus, there is no material on the
basis of which, it can be reasonable said that there is
strong suspicion of the complicity of the petitioners in
commission of the offence in question. In the
considered opinion of this Court, a prime-facie case is
not made out against petitioners and so they cannot be
put on trial with the aid of Section 12 of the
Prevention of Corruption Act or by resort to Section
120(B) of IPC.‖
b) The ratio decidendi of Anvar P.V. (Supra) pertaining to
Section 65B of the Evidence Act, was recently reiterated by the
Hon‟ble Supreme Court in Arjun Panditrao Khotkar v. Kailash
Kushanrao Gorantyal, 2020 (7) SCC 1. The Hon‟ble Supreme
Court therein has held as under:
―73.1. Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014)
10 SCC 473: (2015) 1 SCC (Civ) 27: (2015) 1 SCC
(Cri) 24: (2015) 1 SCC (L&S) 108], as clarified by us
hereinabove, is the law declared by this Court on
Section 65-B of the Evidence Act. The judgment in
Tomaso Bruno [Tomaso Bruno v. State of U.P., (2015)
7 SCC 178: (2015) 3 SCC (Cri) 54], being per
incuriam, does not lay down the law correctly. Also,
the judgment in Shafhi Mohammad [Shafhi
Mohammad v. State of H.P., (2018) 2 SCC 801:
(2018) 2 SCC 807: (2018) 2 SCC (Civ) 346: (2018) 2
SCC (Civ) 351: (2018) 1 SCC (Cri) 860: (2018) 1
SCC (Cri) 865] and the judgment dated 3-4-2018
reported as Shafhi Mohd. v. State of H.P. [Shafhi
Mohd. v. State of H.P., (2018) 5 SCC 311: (2018) 2
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SCC (Cri) 704], do not lay down the law correctly and
are therefore overruled.
73.2. The clarification referred to above is that the
required certificate under Section 65-B(4) is
unnecessary if the original document itself is
produced. This can be done by the owner of a laptop
computer, computer tablet or even a mobile phone, by
stepping into the witness box and proving that the
device concerned, on which the original information is
first stored, is owned and/or operated by him. In cases
where the ―computer‖ happens to be a part of a
―computer system‖ or ―computer network‖ and it
becomes impossible to physically bring such system or
network to the court, then the only means of providing
information contained in such electronic record can
be in accordance with Section 65-B(1), together with
the requisite certificate under Section 65-B(4). The
last sentence in para 24 in Anvar P.V. [Anvar P.V. v.
P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC
(Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC
(L&S) 108] which reads as ―... if an electronic record
as such is used as primary evidence under Section 62
of the Evidence Act ...‖ is thus clarified; it is to be
read without the words ―under Section 62 of the
Evidence Act,...‖. With this clarification, the law
stated in para 24 of Anvar P.V. [Anvar P.V. v. P.K.
Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27
: (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108]
does not need to be revisited.‖
77. Even otherwise, the prosecution has till date not advanced anything
qua the genuineness of the voice recording involving the petitioner. In the
absence of a forensic analysis and report (or for that matter, any other
certifying instrument) pertaining to the authenticity of the voice recording
in question, it is not unreasonable to conclude that the prosecution‟s case
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at trial would be materially impacted. In the case of Nilesh Dinkar
Paradkar v. State of Maharashtra, 2011 (4) SCC 143, the Hon‟ble
Supreme Court has held as follows:
―31. In our opinion, the evidence of voice
identification is at best suspect, if not, wholly
unreliable. Accurate voice identification is much more
difficult than visual identification. It is prone to such
extensive and sophisticated tampering, doctoring and
editing that the reality can be completely replaced by
fiction. Therefore, the courts have to be extremely
cautious in basing a conviction purely on the evidence
of voice identification. This Court, in a number of
judgments emphasised the importance of the
precautions, which are necessary to be taken in
placing any reliance on the evidence of voice
identification.
32 [Ed.: Para 32 corrected vide Official Corrigendum
No. F.3/Ed.B.J./18/2011 dated 5-4-2011.].
In Ziyauddin Burhanuddin Bukhari v. Brijmohan
Ramdass Mehra [(1976) 2 SCC 17] this Court made
following observations: (SCC p. 26, para 19)
‗19. We think that the High Court was quite right in
holding that the tape-records of speeches were
‗documents', as defined by Section 3 of the
Evidence Act, which stood on no different footing
than photographs, and that they were admissible in
evidence on satisfying the following conditions:
(a) The voice of the person alleged to be speaking
must be duly identified by the maker of the record
or by others who know it.
(b) Accuracy of what was actually recorded had to
be proved by the maker of the record and
satisfactory evidence, direct or circumstantial, had
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to be there so as to rule out possibilities of
tampering with the record.
(c) The subject-matter recorded had to be shown to
be relevant according to rules of relevancy found in
the Evidence Act.'‖
78. Apart from the aforesaid, in this case, the public servant who was
said to be involved in the alleged transaction has already been discharged
and is not being tried for any offence under the PC Act. That leaves only
the private individual i.e., the petitioner/alleged middleman to face trial
for charges under Section 12 of the PC Act, read with Section 120B of
the IPC, and that too without any material in the charge-sheet that the
Petitioner either instigated the public servant or entered into a conspiracy
with the public servant and/or the bribe giver. As such, the facts and
circumstances of the present case fall within the scope of the third
category set out in Section 107 of the IPC. Therefore, permitting the trial
to continue would be untenable in light of the judgment of the Hon‟ble
Supreme Court in CBI v. V.C. Shukla, (1998) 3 SCC 410, which
similarly dealt with accused who had acted as middlemen, holding that:
―47. Even if we are to accept the above contentions of
Mr Altaf Ahmed the entries, (which are ―statements‖
as held by this Court in Bhogilal Chunilal [AIR 1959
SC 356: 1959 Supp (1) SCR 310] and hereinafter will
be so referred to), being ―admissions‖ -- and not
―confession‖ -- cannot be used as against Shri
Advani or Shri Shukla. However, as against the Jains
the statements may be proved as admissions under
Section 18 read with Section 21 of the Act provided,
they relate to ―any fact in issue or relevant fact‖.
Needless to say, what will be ―facts in issue‖ or
―relevant facts‖ in a criminal trial will depend upon,
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and will be delineated by, the nature of accusations
made or charges levelled against the person indicted.
In the two cases with which we are concerned in these
appeals, the gravamen of the charges which were
framed against the Jains in one of them (quoted
earlier) and were to be framed in the other pursuant
to the order of the trial court (quoted earlier) is that
they entered into two separate agreements : one with
Shri Shukla and the other with Shri Advani, in terms
of which they were to make certain payments to them
as a gratification other than legal remuneration as a
motive or reward for getting their favour while they
were ―public servants‖ and in pursuance of the said
agreements payments were actually made to them.
Thereby the Jains committed the offence of conspiracy
under Section 120-B of the Penal Code, 1860; and
under Section 12 of the Prevention of Corruption Act,
1988 (Prevention of Corruption Act for short), in that,
they abetted the commission of offences under Section
7 of the Act by Shri Shukla and Shri Advani.
***
49. Thus said we may now turn our attention to
Section 12 of the Prevention of Corruption Act. That
section reads as under:
―12. Punishment for abetment of offences
defined in Section 7 or 11.--Whoever abets
any offence punishable under Section 7 or
Section 11 whether or not that offence is
committed in consequence of that abetment,
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.‖
50. Undoubtedly for a person to be guilty thereunder
it is not necessary that the offences mentioned therein
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should have been committed pursuant to the abetment.
Since ―abetment‖ has not been defined under the
Prevention of Corruption Act we may profitably refer
to its exhaustive definition in Section 107 of the Penal
Code, 1860. 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 IPC which reads
thus:
―Explanation 2. --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 that when a
person abets by aiding, the act so aided should have
been committed in order to make such aiding an
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 the Jains by aiding (and not
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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 Prevention of
Corruption Act, the question of the 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.
79. That apart, this Court in Sanjeev Saxena v. State (NCT of Delhi),
2015 SCC Online Del 9564, has opined as follows:
―16. It is an admitted case of prosecution that the trail
of money is not established despite best efforts to find
out its source. Trial court has also reached a
conclusion in this regard that the efforts to trace
money trail has failed and the principal offender who
attempted to bribe BJP MPs could not be brought on
record. Therefore, the only evidence against the
petitioner is the audio/video recording showing him
and one person in yellow shirt delivering rupees one
crore to the three BJP MPs. However, in my opinion,
this evidence in itself is insufficient to fulfill the
requirement of Section 107 IPC so as to establish a
prima facie case that the petitioner committed the
offence of abetment as specified under Section 12 of
PC Act.
17. It is not the case of the prosecution that the
petitioner engaged/conspired with persons other than
the co-accused to commit the offence of conspiracy.
Since, the co-accused persons have already been
discharged and the trial court has already held that
no evidence of conspiracy is made out even against
the petitioner, under such circumstances, the offence
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of abetment by engaging in conspiracy is not prima
facie established against the petitioner."
80. Lastly, the charge-sheet against the petitioner is underpinned by the
allegation of abetment under Section 12 of the PC Act without there
being any admissible evidence of the demand or offer of bribe. Needless
to state, such a trial would be an exercise in futility, more so because
there are judicial precedents to the effect that a demand of illegal
gratification is imperative for punishment (for abetment as an offence)
under Section 12 of the PC Act. In fact, the judgment of the Hon'ble
Supreme Court in State of Punjab v. Madan Mohan Lal Verma, (2013)
14 SCC 153, which reads as under, is applicable here:
―11. The law on the issue is well settled that demand
of illegal gratification is sine qua non for constituting
an offence under the 1988 Act. Mere recovery of
tainted money is not sufficient to convict the accused
when substantive evidence in the case is not reliable,
unless there is evidence to prove payment of bribe or
to show that the money was taken voluntarily as a
bribe. Mere receipt of the amount by the accused is
not sufficient to fasten guilt, in the absence of any
evidence with regard to demand and acceptance of the
amount as illegal gratification. Hence, the burden
rests on the accused to displace the statutory
presumption raised under Section 20 of the 1988 Act,
by bringing on record evidence, either direct or
circumstantial, to establish with reasonable
probability, that the money was accepted by him,
other than as a motive or reward as referred to in
Section 7 of the 1988 Act. While invoking the
provisions of Section 20 of the Act, the court is
required to consider the explanation offered by the
accused, if any, only on the touchstone of
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preponderance of probability and not on the
touchstone of proof beyond all reasonable doubt.
However, before the accused is called upon to explain
how the amount in question was found in his
possession, the foundational facts must be established
by the prosecution. The complainant is an interested
and partisan witness concerned with the success of the
trap and his evidence must be tested in the same way
as that of any other interested witness. In a proper
case, the court may look for independent
corroboration before convicting the accused person.
(Vide Ram Prakash Arora v. State of Punjab [(1972) 3
SCC 652 : 1972 SCC (Cri) 696 : AIR 1973 SC 498] ,
T. Subramanian v. State of T.N. [( 2006) 1 SCC
401 : (2006) 1 SCC (Cri) 401] , State of Kerala v.
C.P. Rao [(2011) 6 SCC 450 : (2011) 2 SCC (Cri)
1010 : (2011) 2 SCC (L&S) 714] and Mukut Bihari v.
State of Rajasthan [(2012) 11 SCC 642 :(2013) 1 SCC
(Cri) 1089 : (2013) 1 SCC (L&S) 136].)‖
81. Therefore, in light of the facts of the case along with the material
on record, and since there is no substance in the accusation levelled nor
any admissible evidence is on record incriminating the petitioner, the
petitioner is entitled to relief under Section 482 of the Code.
82. In view of these facts and circumstances, as well as the provisions
of law, their application to the case at hand and the analysis made, this
Court is inclined to allow the instant petition.
83. For the reasons recorded above, this Court allows the instant
petition as prayed for. The impugned orders dated 1 st June 2012 and 4th
June 2012 passed by Learned Special Judge, (CBI-05), New Delhi
whereby charges have been framed qua the Petitioner, are hereby set
aside.
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84. Accordingly, the petition and pending applications stand disposed
of.
85. The judgment be uploaded on the website forthwith.
(CHANDRA DHARI SINGH)
JUDGE
January 17, 2022
dy
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