Prashant Bajpai @ Prashant ... vs The Union Of India Through C.B.I
2021 Latest Caselaw 3429 Jhar

                                  1                            Cr. Rev. No.222 of 2021




      IN THE HIGH COURT OF JHARKHAND AT RANCHI


                       Cr. Rev. No. 222 of 2021


    [Against the Order dated 20.03.2021 passed by the Special Judge C.B.I.,
    Ranchi in Misc. Criminal Application No. 171 of 2021 in
    R.C.08(A)/2020-R]


    Prashant Bajpai @ Prashant Bajpayee, aged about 53 years, son of
    Shri Ashok Narayan Bajpai, resident of GM Bungalow, P.O. & P.S. -
    Andgara, District -Ramgarh.
                                                    .....          Petitioner
                                      Versus


    The Union of India through C.B.I.
                                                     .....       Opposite Party

                                      PRESENT

          HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

                                          .....

For the Petitioner : Mr. Prashant Pallav, Advocate For the C.B.I. : Mr. Rohit Sinha, Advocate .....

By the Court: - Heard the parties through video conferencing.

2. This criminal revision is directed against the Order dated 20.03.2021 passed by the Special Judge C.B.I., Ranchi in Misc. Criminal Application No. 171 of 2021 in R.C. 08(A)/2020-R whereby and where under the learned court below has rejected the petition filed by the petitioner to discharge him in the case.

3. The brief facts of the case is that the petitioner at the relevant time was the General Manager of CCL, Barka Sayal Area, District -Ramgarh, and was a public servant and the competent authority for final approval of the Tender Committee Recommendation (TCR). A complaint was received by the Superintendent of Police, C.B.I./A.C.B., Ranchi from the complainant -Digvijay Singh who is the proprietor of M/s Jai Maa

Enterprises, Bhurkunda, alleging therein that the complainant is a contractor in CCL, Bhurkunda and he submitted tender documents in response to the tender for maintenance and strengthening of the road with GSB under Birsa Project, District -Hazaribagh of CCL and for which he was in need of final approval of the aforesaid work in shape of Tender Committee Recommendation (TCR). It is also alleged that the petitioner for doing the aforesaid work demanded undue advantage of Rs.26,000/- i.e. 2% of the total value of work order of Rs.13,00,000/- approximately through his Senior P.A. namely Aparna Choudhary. During the trap, the co-accused Aparna Choudhary was caught red handed while demanding and accepting illegal gratification of Rs.26,000/- on behalf of the petitioner from the complainant -Digvijay Singh and the tainted bribe money kept on the instruction of the petitioner in the concerned file related to work of maintenance and strengthening of existing coal transportation road, Birsa was recovered in presence of independent witnesses and other trap team members. The necessary post-trap formalities were carried out. The conversation between the petitioner and the complainant as well as between the co-accused Aparna Choudhary and the complainant was recorded in Digital Voice Recorder (DVR).

4. After completion of investigation, charge sheet has been submitted against the petitioner for having committed offences punishable under Section 120B of the Indian Penal Code and under Section 7 of the Prevention of Corruption Act, 1988.

5. It is submitted by the learned counsel appearing for the petitioner that there is material contradiction in the F.I.R. and the information given by the complainant. It is further submitted that the sanction order dated 16.09.2020 is bad in the eye of law as the same has been passed in a routine manner without taking into consideration the material evidence collected during the investigation of the case. It is next submitted that the learned trial court has erred by not considering the fact that the instant case is not triable as the complaint is with regard to the Project at Birsa while the entire Digital Voice Recorder (DVR) shows that the petitioner was interested in Urimari Project, hence the entire investigation is

vitiated. It is further submitted by the learned counsel for the petitioner that the learned trial court ought to have considered that the complainant was never subjected to phenolphthalein test which is important as the file was never in the custody of the petitioner and G.C. Notes were lying with the complainant and it was never handed over to the co-accused. It is next submitted that the learned trial court ought to have considered that the petitioner could not have obtained or attempted to obtain any illegal gratification/undue favour as it was not time for him to discharge his official duty since only when the TCR document is signed by the Area Finance Manager, the role of the petitioner would begin. It is next submitted by the learned counsel for the petitioner that the learned court below has failed to consider the material contradiction in the statement of witnesses. The grounds M & N of the criminal revision petition are as under:-

(M) For that the impugned Judgment is an outcome of conjectures and surmises.

(N) For that the impugned Judgment is perverse to the material available on record.

It is then submitted by the learned counsel for the revision petitioner that Sri S.N. Bhoidar, member of TCR has made a recommendation that the project for the maintenance and strengthening of road with GSB under the Birsa Project is being carried out departmentally, hence no contractual work is required and as such approval for the same could not be granted by the petitioner in any manner. It is next submitted by the learned counsel for the petitioner that since there was no demand, the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 is not made out. Hence, it is submitted that the Order dated 20.03.2021 passed by the Special Judge C.B.I., Ranchi in Misc. Criminal Application No. 171 of 2021 in R.C.08(A)/2020-R whereby and where under the prayer for discharging the petitioner from the case was rejected be set aside and the petitioner be discharged.

6. Mr. Rohit Sinha, the learned counsel appearing for the Central Bureau of Investigation, on the other hand defended the

impugned order and submitted that the order passed by the learned Special Judge, C.B.I., rejecting the prayer of the petitioner to be discharged is not a judgment but an order as it has categorically been mentioned in the impugned order itself in bold letters that it is an order but the petitioner is under a wrong impression that the same is a judgment as is evident from the verbatim of ground nos. M & N, as mentioned in this revision petition. Mr. Rohit Sinha further submitted that there is ample evidence in the record to bring home the charges against the petitioner for the offences punishable under Section 120B of the Indian Penal Code and under Section 7 of the Prevention of Corruption Act, 1988. It is further submitted by Mr. Sinha that to constitute the offence under Section 7 of the Prevention of Corruption Act, 1988, a public servant need not only to obtain or accept undue advantage or attempt to do so can also constitute an offence punishable under Section 7 of the Prevention of Corruption Act, 1988. It is next submitted by Mr. Rohit Sinha that this is a clear cut case where the petitioner has demanded & accepted the bribe and the tainted bribe money has been recovered from the co- accused. Relying upon the Judgment of Hon'ble Supreme Court of India, in the case of Amit Kapoor v. Ramesh Chander & Anr. reported in (2012) 9 SCC 460, paragraph no.36 of which reads as under:-

"36. Thus, we are of the considered view that the finding returned by the High Court suffers from an error of law. It has delved into the field of appreciation and evaluation of the evidence which is beyond the jurisdiction, either revisional or inherent, of the High Court under Sections 397 and 482 of the Code."

Mr. Rohit Sinha submits that it is not open for this Court while exercising jurisdiction under Section 397 of the Code of Criminal Procedure to delve into the field of appreciation and evaluation of the evidence. It is further submitted by Mr. Rohit Sinha that the contention of the petitioner that there is discrepancy in evidence or for that matter the conversation between the petitioner and the complainant that the complainant at one point of time has uttered the word 'Urimari' cannot be taken out of context and it has

to be read in continuity with the entire conversation between the two and certainly the said matter can be raised before the trial court during the final argument of the trial and certainly the same cannot be considered at the stage of framing of the charge. Hence, it is submitted by Mr. Sinha that there is no perversity or illegality in the impugned order passed by the learned trial court rather the trial court has rightly rejected the prayer of the petitioner to discharge him from the case in view of overwhelming evidence against him. It is therefore submitted that this revision petition being without any merit be dismissed.

7. Having heard the submissions made at the Bar and after carefully going through the materials in the record, it is pertinent to mention here that it is a settled principle of law that it is not open for the accused to rely upon the materials by way of defence and persuade the court to discharge him as has been held by the Hon'ble Supreme Court of India, in the case of M.E. Shivalingamurthy vs. Central Bureau of Investigation, Bengaluru (2020) 2 SCC 768 wherein, the Hon'ble Supreme Court has held as under in paragraph no.29:-

"29. It is not open to the accused to rely on the material by way of defence and persuade the court to discharge him."

(Emphasis Supplied) It is also a settled principle of law that defects in according sanction for prosecution cannot be considered at the stage of charge and can only be considered during the trial and only absence of sanction can be agitated at the stage of framing of charge as has been held by the Hon'ble Supreme Court of India in the case of C.B.I. vs. Mrs. Pramila Virendra Kumar Agrawal & Another (Cr. Appeal No.1489-90 of 2019) date of the judgment is 25.09.2019 wherein the Hon'ble Supreme Court of India has held as under in paragraph-13:-

"13. Further the issue relating to validity of the sanction for prosecution could have been considered only during trial since essentially the conclusion reached by the High Court is with regard to the defective sanction since

according to the High Court, the procedure of providing opportunity for explanation was not followed which will result in the sanction being defective. In that regard, the decision in the case of Dinesh Kumar vs. Chairman, Airport Authority of India, (2012) 1 SCC 532 relied upon by the learned Additional Solicitor General would be relevant since it is held therein that there is a distinction between the absence of sanction and the alleged invalidity on account of nonapplication of mind. The absence of sanction no doubt can be agitated at the threshold but the invalidity of the sanction is to be raised during the trial. In the instant facts, admittedly there is a sanction though the accused seek to pick holes in the manner the sanction has been granted and to claim that the same is defective which is a matter to be considered in the trial". (Emphasis Supplied) It is needless to mention that this is not a case where sanction for prosecution has not been accorded rather it is the contention of the petitioner that the sanction for prosecution is not proper. Hence, merits of the said contention can only be considered during the trial and thus the impugned order rejecting the petition for discharging the petitioner cannot be set aside only because there is some alleged defect in the sanction of prosecution.

So far as the contention of the petitioner regarding the report of the chemical examination of the phenolphthalein test has not been received is concerned, it is a settled principle of law as has been held by the Hon'ble Supreme Court of India in the case of State of U.P. vs. Zakaullah reported in (1998) 1 SCC 557 in paragraph nos. 11 & 12 relying upon the judgment in the case of Prakash Chand vs. State (Delhi Administration) reported in (1979) 3 SCC 90 and Hazari Lal vs. State (Delhi Administration) reported in (1980) 2 SCC 390 that the officer who arranges the trap, makes arrangement to smear phenolphthalein powder in currency notes in order to satisfy himself that the public servant had in fact received the bribe and not that the currency notes were just thrust into the pocket of any unwilling officer. Such a test is conducted for his conscientious

satisfaction that he was proceeding against a real bribe taker and that an officer with integrity is not harassed unnecessarily. Regarding not sending the solution collected in a phial during the trap for chemical examination, the Hon'ble Supreme Court of India in paragraph no.13 of State of U.P. vs. Zakaullah (supra) has observed that the solution in a trap case is also viewed not because there is any such direction by the statuary provision but for the satisfaction of the officer that the suspected public servant would have clearly handled the bribe money and if there is no material discrepancy in the evidence regarding preparation of recovery- memo, which no doubt can only be appreciated after the trial, the reliability of the trap cannot be stated to be impaired for as not sending the solution collected in a phial during the trap for chemical examination and that being the proposition of law, the non-receipt of the report of the chemical examination of the phenolphthalein test is certainly not a ground to interfere with the impugned order by which the prayer for discharge of the petitioner has been rejected.

So far as the contention of the petitioner regarding the complainant in the Digital Voice Recorder (DVR), at one point of time uttered the word 'Urimari' is concerned; as rightly submitted by the learned counsel for the Central Bureau of Investigation, the same can only be considered, taking into consideration the entire conversation and out of context, a word cannot be considered to arrive at a conclusion and the same can only be done at the full dress trial of the case and certainly not at the stage of framing of the charge.

So far as the contention of the petitioner that the work was to be done departmentally is opined by an officer of CCL he is concerned, the same is a defence of the petitioner. In view of the settled principle of law in the case of M.E. Shivalingamurty vs. Central Bureau of Investigation, Bengaluru (Supra), the same cannot be considered at the stage of framing of the charge.

8. Thus in view of the discussion made above, this Court is of the considered view that there is no perversity or illegality in the impugned order passed by the learned trial court rejecting the

prayer for discharging the petitioner. Accordingly, this criminal revision being without any merit is dismissed.

(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 15th of September, 2021 AFR/ Sonu-Gunjan