Mithilesh Prasad Singh vs The State Of Jharkhand Through ...
2021 Latest Caselaw 1136 Jhar

                                           1                                Cr.M.P. No. 2755 of 2020




        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   Cr. M.P. No.2755 of 2020


Mithilesh Prasad Singh, Son of Late Kedar Prasad Singh, Aged about 57
years, R/o Village- Sonpur, P.O.- Sonpur, P.S.- Simri Bakhtiyarpur,
District- Saharsa, Bihar                 ......       Petitioner
                              Versus
The State of Jharkhand through A.C.B.    .....        Opposite Party


For the Petitioner             : Mr. Rishu Ranjan, Advocate
For the A.C.B.                 : Mr. Suraj Verma, Special PP

                                      PRESENT

          HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

By the Court:- Heard the parties through Video Conferencing.

2. This Criminal Miscellaneous Petition has been filed under Section 482 of the Code of Criminal Procedure, 1973 with the prayer

(i) to quash the final form no. 07 of 2020 dt. 14.05.2020,

(ii) to quash the cognizance order dt. 23.05.2020,

(iii) to quash all the consequent proceedings in connection with A.C.B. Ranchi P.S. case no. 04 of 2020 registered under Section 7(a) of the Prevention of Corruption Act wherein the charge sheet has been submitted under Section 7(a) of the Prevention of Corruption Act.

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 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, 1988, No. 16 of 2018 of 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 Assistant Sub Inspector of Police in Sukhdeonagar Police Station, he was the Investigating Officer of Sukhdeonagar P.S. case no. 34 of 2020 registered for the offence punishable under Section 498A of the Indian Penal Code, lodged by the wife of the accused of that case. The accused of Sukhdeonagar P.S. case no. 34 of 2020 is the complainant of this case. The specific allegation against the petitioner is that the petitioner called the complainant of this case outside the police station in connection with Sukhdeonagar P.S. case no. 34 of 2020 which was registered on 18.01.2020. The complainant of this case met the petitioner of this case and the petitioner of this case told the complainant of this case that if the complainant of this case pays Rs. 15,000/- then, the petitioner of this case will help the complainant of this case and if the complainant of this case does not pay money, then the petitioner of this case will submit the report in Court. As the complainant of this case did not want to pay the bribe, hence, he submitted a written report to the Superintendent of Police, Anti Corruption Bureau, Ranchi. The allegation was verified by the Inspector of Police namely Misir Oraon. The verifying police officer went with the complainant of this case on 16.03.2020. After sometime, the petitioner also reached there and the complainant informed the petitioner of this case that his daughter has met with an accident and requested for some more time, at which, the petitioner told that Rs. 10,000/- was to be paid but first installment of Rs. 3,000/- was to be paid immediately because he has to send the case diary and charge sheet to the court and if the complainant causes any delay, then the petitioner will submit a report in the court. The conversation was heard by the Verifying Officer and the Verifying Officer confirmed the demand of bribe by the petitioner and submitted the verification report; on the basis of which, this case was registered. A trap was laid. The petitioner was caught red- handed after receiving the bribe of Rs. 3,000/-. The solution in which, both the hands of the petitioner were washed, was seized.

The complainant thereafter submitted an application addressed to the Superintendent of Police, Anti corruption Bureau making the allegations against Sanjay Kumar, the then Officer-In-Charge of Sukhdeonagar Police Station and his bodyguard, Constable Lakshman Yadav of abusing him by using obscene language and assaulting him and also Lakshman Yadav snatching away Rs. 35,000/- from the pocket of the complainant and of mentally torturing the complainant. After the successful trap on 18.03.2020, and recovery of the bribe money from him, the petitioner was arrested. The phials containing the solution with which the hands of the petitioner were washed, were sent to the State Forensic Laboratory.

4. After investigation, on inspection of place of occurrence, statement of the witnesses, seized articles, the 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 and submitted charge sheet against the petitioner for having committed the said offence while continuing the investigation against the co-accused Sanjay Kumar and Lakshman Yadav. It is also alleged that the petitioner informed the complainant to meet the Officer-In-Charge, after the complainant came out from the jail in connection with the said case on 07.02.2020. The petitioner also called the complainant on 05.03.2020 to meet him at RIMS and upon the complainant meeting the petitioner there, the petitioner threatened the complainant and demanded Rs. 15,000/- as the petitioner has to pay money to the Bara Babu and all staff or else the petitioner will implicate him in another case and will send him to jail, at which, when the complainant explained the petitioner that on 18.01.2020, Rs. 35,000/- was taken by bodyguard of the Bara Babu from him, then the petitioner told the complainant "Alright". After submission of the charge sheet no. 07 of 2020 upon going through the same as well as the sanction order of prosecution and Supplementary Case Diary against the petitioner and also upon the perusal of the record including other documents available on the

record, vide order dt. 23.05.2020, learned Special Judge, Anti- corruption Bureau , Ranchi found that prima facie same reflects the commission of the offence punishable under Section 7-A of the Prevention of CorruptionAct, 1988 as amended by the Prevention of Corruption (Amendment) Act, 1988, No. 16 of 2018 and accordingly, took cognizance of the offence punishable under section 7-A of the Prevention of Corruption Act, 1988 as amended by the Prevention of Corruption (Amendment) Act, 1988, No. 16 of 2018 against the petitioner.

5. Mr. Rishu Ranjan learned counsel for the petitioner submits that the order dated 23.05.2020 passed by learned trial court in Vigilance Case No. 4 of 2020 is a non-speaking order and the sanction order for prosecution of the petitioner was submitted after submitting the charge sheet. It is submitted by learned counsel for the petitioner that the order dated 23.05.2020 has been passed in a mechanical manner and it does not disclose the application of mind or prima facie satisfaction of the court below. It is next submitted by learned counsel for the petitioner that as the petitioner was the Investigating Officer of the case instituted against the complainant, hence, the complainant implicated him in this false case.

6. In support of his contention, that for dismissal of the petition filed with a prayer for passing the cognizance, the High Court has to record a finding that the uncontroverted allegations, as made, establish a prima facie case against the appellant, the learned counsel for the petitioner relies upon the judgment of Hon'ble Supreme Court India in the case of Fakhruddin Ahmad vs. State of Uttaranchal and Another reported in (2008) 17 SCC 157 , the paragraph 17 and 21 of which reads as under :

"17. Nevertheless, it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender."

"21. Bearing in mind the above legal position, we are convinced that the High Court was not justified in dismissing the petition on the aforestated ground. In our opinion, in order to arrive at a conclusion, whether or not the appellant had made out a case for quashing of the charge-sheet against him, the High Court ought to have taken into consideration the material which was placed before the Magistrate. For dismissal of the petition, the High Court had to record a finding that the uncontroverted allegations, as made, establish a prima facie case against the appellant. In our judgment, the decision of the High Court dismissing the petition filed by the appellant on the ground that it is not permissible for it to look into the materials placed before the Magistrate is not in consonance with the broad parameters, enumerated in a series of decisions of this Court and briefly noted above, to be applied while dealing with a petition under Section 482 of the Code for discharge and, therefore, the impugned order is unsustainable." (Emphasis supplied)

7. Mr. Rishu Ranjan learned counsel for the petitioner further relies upon order of a co-ordinate 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 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)

8. Mr. Rishu Ranjan learned counsel for the petitioner in respect of the settled principle of law that where non-interference of the court would ultimately result in failure of justice, the court must interfere also relies upon the judgment of Hon'ble Supreme Court of India in the case of Babubhai vs. State of Gujarat and others reported in (2011) 1 SCC (Cri) 336, the paragraph 45 of which reads as under :

"45. Not only fair trial but fair investigation is also part of constitutional rights guaranteed under Articles 20 and 21 of the Constitution of India. Therefore, investigation must be fair, transparent and judicious as it is the minimum requirement of rule of law. The investigating agency cannot be permitted to conduct an investigation in a tainted and biased manner. Where non-interference of the court would ultimately result in failure of justice, the court must interfere. In such a situation, it may be in the interest of justice that independent agency chosen by the High Court makes a fresh investigation." (Emphasis supplied)

9. It is therefore submitted that the final form as well as the order taking cognizance be quashed.

10. Mr. Suraj Verma, learned Special P.P. appearing for the Anti Corruption Bureau, on the other hand defended the impugned order and submits that this is case of trap and undisputedly, the petitioner was caught red handed accepting the bribe of Rs. 3,000/- and the colour of the solution turned to pink after the hands of the petitioner were washed therein after he was caught red-handed after 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 Magistrate has applied his mind before taking cognizance of the offence.

11. Mr. Verma in support of his contention that at the stage of taking cognizance, the defence of the accused is not to be considered, 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)

12. Hence, it is submitted by Mr. Verma that there is no justifiable reason for quashing the charge sheet or the order dated 23.05.2020 by which learned trial court has taken cognizance for the said offence, hence, it is submitted that this petition being without any merit be dismissed.

13. 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. 3,000/- upon demand from the complainant. 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.

14. It is 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 Hence, 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 trial court 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.

15. Before parting, it is pertinent to mention here that learned trial court could have done well by making a detailed discussion about the materials in the record at the time of taking cognizance of the offence in order to obviate the petitioner approaching this court and this court, making detailed discussion of the materials in the record. The Judicial Officers, particularly, those dealing with the Prevention of Corruption Act or the Officers posted in the Superior Judicial Services, who can be posted as Special Judges, under the various special acts need to be trained in this respect to save the precious judicial work hours of this court.

16. The Director Judicial Academy, is directed to conduct a refresher training course for such officers, if necessary, by virtual mode on any day within four months from the date of receipt of this order.

17. The Registrar General of this court is directed to supply a copy of the order to the Director, Judicial Academy for compliance forthwith.

(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 8th March, 2021.

AFR/Smita