Jharkhand High Court

Nishat Ahmad vs The State Of Jharkhand Through ... on 6 April, 2021

                                        1                          Cr.M.P. No.480 of 2021




                 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                            Cr.M.P. No. 480 of 2021

        (Against the order dated 04.01.2021 passed by learned Special Judge,
        Vigilance, Hazaribagh in Vigilance Case No.01 of 2021 arising out of ACB P.S.
        Case No.05 of 2020)

         Nishat Ahmad, aged about 41 years, son of Late Ekramul Haque, resident
         of Hashmia Colony (Lohsingna Road), P.O. Hazaribagh, P.S. Sadar,
         District-Hazaribagh                      ....                 Petitioner
                                    Versus
         The State of Jharkhand through A.C.B. ...                   Opposite Party

                                      PRESENT

                HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
                                      .....

For the Petitioners : Mr. A.K. Sahani, Advocate For the A.C.B. : Mrs. Priya Shrestha, Spl. P.P.

.....

By the Court:-

1. Heard the parties through video conferencing.

2. This criminal miscellaneous petition has been filed

invoking the jurisdiction of this Court under Section 482 Cr.P.C.

with a prayer to quash the entire criminal proceeding as well as

order dated 04.01.2021 passed by learned Special Judge,

Vigilance, Hazaribagh in Vigilance Case No.01 of 2021 arising

out of ACB P.S. Case No.05 of 2020 whereby and whereunder,

cognizance has been taken under Section 7 (a) of the Prevention

of Corruption Act, 1988 as amended by Prevention of

Corruption (Amendment) Act, 2018 now pending in the Court of

learned Special Judge, Vigilance, Hazaribagh.

Though in the prayer portion of the petition it has been

mentioned that the concerned offence is of 7 (a) of the

Prevention of Corruption (Amendment) Act but perusal of the

record reveals that the concerned offence involved in this case is

punishable under Section 7-A of the Prevention of Corruption

Act, 1988 as amended by the Prevention of Corruption

(Amendment) Act, 2018, which reads as under :-

"7-A. Taking undue advantage to influence public servant by corrupt or illegal means or by exercise of personal influence. - Whoever accepts or obtains or attempts to obtain from another person for himself or for any other person any undue advantage as a motive or reward to induce a public servant, by corrupt or illegal means or by exercise of his personal influence to perform or to cause performance of a public duty improperly or dishonestly or to forbear or to cause to forbear such public duty by such public servant or by another public servant, 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."

3. The brief facts of the case is that the petitioner while

posted as Jamadar of Jainagar Police Station, was caught red

handed in a trap after accepting the bribe amount of Rs.15,000/-

from the complainant. After successful trap and completion of

formalities including inspection of place of occurrence, recording

of statement of the witnesses, seizure of articles, police found the

allegation against the petitioner of having committed the offence

punishable under Section 7-A of the Prevention of Corruption

Act, 1988 as amended by the Prevention of Corruption

(Amendment) Act, 2018 is made out.

4. Mr. A.K. Sahani, learned counsel for the petitioner

submits that in view of the decision of a coordinate Bench of this

Court in the case of Amresh Kumar Dhiraj and Others vs. State

of Jharkhand and Another reported in 2019 SCC OnLine Jhar

2775, the order taking cognizance passed by the learned Sessions

Judge is not in consonance with law hence, the order dated

04.01.2021 passed by learned Special Judge, Vigilance,

Hazaribagh in Vigilance Case No.01 of 2021 arising out of ACB

P.S. Case No.05 of 2020 and the entire criminal proceeding be

quashed.

5. In support of his contention, Mr. Sahani, relied upon the

judgment of Amresh Kumar Dhiraj and Others vs. State of

Jharkhand and Another reported in 2019 SCC OnLine Jhar

2775, paragraphs 10, 14 and 22 of which reads as under :-

"10. The word "cognizance" is not defined in the Code of Criminal Procedure. In the case of "S.K. Sinha, Chief Enforcement Officer v. Videocon International Ltd., reported in (2008) 2 SCC 492", the Hon'ble Supreme Court in Para-19 has held as follows:--

19. The expression 'cognizance' has not been defined in the Code. But the word (cognizance) is of indefinite import. It has no esoteric or mystic significance in criminal law. It merely means 'become aware of' and when used with reference to a court or a Judge, it cannot 'to take notice of judicially'. It indicates the point when a court or a Magistrate takes judicial notice of an offence with a view to initiating proceedings in respect of such offence said to have been committed by someone."

14. It is clear that it is not necessary to pass a detail order giving detail reasons while taking cognizance. The order taking cognizance should only reflect application of judicial mind. If the Magistrate after going through the complaint petition and the statements of the other witnesses or after going through the FIR, case diary and charge sheet or the complaint, as the case may be comes to a conclusion that the offence is made out, he is bound to take cognizance of the offence. The order should reflect application of judicial mind to the extent that from the FIR, the case diary or complaint, offence is made out."

22. In the case of "Sunil Bharti Mittal v. CBI, reported in (2015) 4 SCC 609", the Hon'ble Supreme Court has held that an opinion to proceed further against the accused is to be stated in the order itself. Further in the case of "Anil Kumar v. M.K. Aiyappa, reported in (2013) 10 SCC 705" at para-11 the Hon'ble Supreme Court while dealing with the scope of Section 156(3) Cr.P.C. has held that the application of mind by the Magistrate should be reflected in the order. The mere statement that he has gone through the complaint, documents and heard the complainant, as such, as reflected in the order, will not be sufficient. The

order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though detailed reasons need not to be given. The proper satisfaction should be recorded by the Judge." (Emphasis supplied)

6. Mrs. Priya Shrestha, learned Special P.P. appearing for the

Anti-Corruption Bureau, on the other hand defended the

impugned order and submits that this is a case of trap and

undisputedly, the petitioner was caught red handed while

accepting the bribe of Rs. 15,000/- and the colour of the solution

turned to pink after the hands of the petitioner were washed

therewith after he was caught red-handed upon accepting the

bribe hence there is ample evidence in the record to bring home

the charge against the petitioner let alone constituting a prima

facie case for the purpose of taking cognizance of the offence and

learned Special Judge has applied his mind before taking

cognizance of the offence.

7. Mrs. Shrestha, further submitted that at the stage of taking

cognizance, the learned Special Judge is not required to consider

the defence version or materials or arguments nor is he required

to evaluate the merits of the materials or evidence of the

complainant, because the Special Judge must not undertake the

exercise to find out at the stage of taking cognizance whether the

materials will lead to conviction or not. In support of its

contention, Mrs. Shrestha, relies upon the judgment of Hon'ble

Supreme Court India in the case of Sonu Gupta vs. Deepak

Gupta and Others reported in (2015) 3 SCC (424), the paragraph

8 of which reads as under :-

"8. Having considered the details of allegations made in the complaint petition, the statement of the complainant on solemn affirmation as well as materials on which the appellant placed reliance which were called for by the learned Magistrate, the learned Magistrate, in our considered opinion, committed no error in summoning the accused persons. At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. At this stage, the learned Magistrate is not required to consider the defence version or materials or arguments nor is he required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials will lead to conviction or not. "(Emphasis supplied)

8. Hence, it is submitted by Mrs. Shrestha that there is no

justifiable reason for quashing the order dated 04.01.2021 by

which the learned Special Judge has taken cognizance of the said

offence or for that matter for quashing the entire criminal

proceedings hence this petition being without any merit be

dismissed.

9. Having heard the submissions made at the Bar and after

going through the material in the record, it is crystal clear that

this a clear cut case of successful trap and the petitioner was

caught red handed immediately after accepting the bribe of Rs.

15,000/- upon demand of the said bribe amount from the

complainant and the said bribe amount has been recovered from

the petitioner after the trap. Before that, a police officer of the

rank of Inspector of Police has verified the complaint and has

heard the petitioner demanding the bribe and submitted his

verification report after being satisfied about the allegation made

by the complainant.

10. It is a settled principle of law as the Hon'ble Supreme

Court of India in the case of Birla Corpn. Ltd. v. Adventz

Investments & Holdings Ltd., (2019) 16 SCC 610 reiterated the

settled principle of law in paragraph 36 that at the stage of

issuance of process to the accused, the Magistrate is not required

to record detailed orders and also referred to its judgment in the

case of Jagdish Ram v. State of Rajasthan(2004)4 SCC 432

wherein inter alia it has been held that at the stage of issuing the

process to the accused, the Magistrate is not required to record

reasons.

11. It is also a settled principle of law that no police officer

will take the risk of committing perjury for implicating a fellow

police officer in a false case. The Hon'ble Supreme Court of India

in the case of Gian Singh v. State of Punjab reported in AIR

1974 SC 1024 observed that police officer cannot be discredited

in trap cases merely because they are police officials nor can

other witnesses be rejected because on some other occasion they

have been witnesses for the prosecution in the past. Basically,

the Court has to view the evidence in the light of the

probabilities and the intrinsic credibility of those who testify,

paragraph no.5 of the said Judgment reads as under:-

"5. Xxxxxxxxxxxx In a recent case to which one of us was party (Som Prakash v. State of Delhi [(1974) 4 SCC 84 : 1974 SCC (Cri) 215] ) this Court has held that police officials cannot be discredited in a trap case merely because they are police officials, nor can other witnesses be rejected

because on some other occasion they have been witnesses for the prosecution in the past. Xxxxxxxxxxxxx"

Now coming to the facts of this case, in view of the

overwhelming material in the record, this Court is of the

considered view that there is ample material in the record for the

learned Special Judge to take cognizance for the offence

punishable under Section 7-A of the Prevention of Corruption

Act, 1988 as amended by the Prevention of Corruption

(Amendment) Act, 2018 and that the uncontroverted allegations,

as made, establish a prima facie case against the petitioner of

having committed the said offence. Accordingly, this petition

being without any merit is dismissed.

12. Before parting, it is pertinent to mention here that learned

Special Judge could have done well by making a detailed