Jharkhand High Court
Harishankar Rai vs The State Of Jharkhand Through ... on 17 August, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(Cr.) No. 497 of 2023
Harishankar Rai ...... Petitioner
Versus
1.The State of Jharkhand through Anti-Corruption Bureau, Ranchi
2.Samer Kumar Sinha, Marketing Secretary, Krishi Utpadan Bazar Samiti Godda
...... Respondents
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioner : Mr. Prashant Pallav, Advocate
For the State :Mr. Deepankar Roy, Advocate
.................
02/Dated: 17/08/2023
Heard Mr. Prashant Pallav, learned counsel for the petitioner and Mr.
Deepankar Roy, learned counsel for the State.
2. This petition has been filed for quashing the order taking cognizance
dated 10.12.2021 in connection with Vigilance Case No. 27 of 2011 corresponding to
Godda Nagar P.S. Case No. 293 of 2011 whereby the learned Special Judge (ACB),
Dumka has taken cognizance under sections 7, 13, (2) r/w 13(1) (d) of the P.C. Act as
well as under section 385 of I.P.C. pending in the Court of learned Additional Sessions
Judge-II, Dumka.
3. The F.I.R. has been lodged alleging therein that the petitioner was
holding a post of clerk in Agriculture Production Market Committee. Letter No.
715/GO, dated 01.08.2011 was received by the office of Sub-Divisional Officer-cum-
Special Officer, Agriculture Production Market Committee, Godda from Yogendra
Kumar Thakur.
It was further alleged that the complainant was working as fee collector
in the 'hat" and on 31.07.2011 he was approached by the petitioner and was
demanded Rs, 30,000/- as illegal gratification. Though the said demand was out
rightly denied by the complainant, the petitioner threatened the complainant of
foreclosure of market. The complainant got scared and could only arranged Rs. 3000/-
to be given to the petitioner on 01.08.2011. The complainant filed a complaint against
the petitioner in the office of ACB in writing which was supported by another witness
namely, Muktinath Pandey.
On the basis of such complaint inventory of the 'GC notes' amounting to
be Rs. 3,000/-, to be paid to the accused was prepared. For authentication of the
currency to be used for trap notes, two currency was marked by SDO which has been
featured at Sl. No. 12 and 18 of the seizure list.
After the alleged transaction the complainant informed the SDO via
telephone that the notes have been received by the petitioner and as such the SDO
with other investigating officers raided the house of the petitioner and the alleged
currency was recovered from the possession of the petitioner.
It was stated by the petitioner that the said currency was brought by
him from his father's place and the entire conversation was recorded virtually.
4. Learned counsel for the petitioner submits the this case is fit to be
allowed in view of the fact that ignoring section 17 of P.C. Act investigation has been
conducted by the Inspector and the said section provides that investigation has to be
conducted by the Dy. Superintendent of Police. He further submits that the pre and
post trap method has not been adopted in that view of the matter the entire criminal
proceeding may be quashed. On the point of pre and post trap he relied the
judgment of the learned Single Judge of the Patna High Court in the case of "Ras
Bihari Prasad V. State of Bihar" reported in MANU/BH/1601/2012.
5. Mr. Deepankar Roy, learned counsel for the State submits that
investigation conducted by the Inspector is not a ground of quashing the entire
criminal proceeding as the learned court has already taken the cognizance and that
point can be taken by the petitioner in course of trial.
6. In view of above submission of the learned counsel for the parties,
the Court finds that allegations are there that the complainant was working as Fee
Collector at Hat and on 31.07.2011 he was approached by the petitioner and was
demanded Rs. 30,000/-. The complainant was not able to arrange the said amount
however, Rs. 3,000/- was given to the petitioner on 01.08.2011 and an amount of
Rs. 3,000/- was recovered and two currency was marked by SDO which has been
featured at Sl. Nos. 12 and 18.
7. There are two kinds of traps, 'a legitimate' trap where the offence has
already been born and is in its course, and an 'illegitimate trap' where the offence has
not yet been born and a temptation is offered to see whether an offence would be
committed, succumbing to it, or not. Thus, where the bribe has already been
demanded from a man and the man goes out offering to bring the money, but goes to
the police and the Magistrate' and brings them witness the payment, it will be a
'legitimate trap' wholly laudable and admirable, and adopted in every civilized country
without the least criticism by any honest man. But where a man has not demanded a
bribe and is only suspected to be in the habit of taking bribes, and he is tempted with
a bribe, just to see whether he would accept it or not and to trap him, if he accepts it
will be an illegitimate trap and unless authorized by an Act of Parliament it will be
an offence on the part of the persons taking part in the trap who will all be
accomplices whose evidence will have to be corroborated by untainted evidence to a
smaller or larger extent as the case may be before a conviction and this aspect of the
matter can be proved only in the trial.
8. Further, if the investigation is done by the Inspector that can be said to
be an irregularity and unless irregularity is resulted in causing prejudice the order
taking cognizance cannot be vitiated. The reference may be made to the case of
"Vinod Kumar Garg Vs. State ((Government of National Capital Territory of
Delhi) (2020) 2 SCC 88" wherein para 27 and 28 it has been held as under:-
"27. The last contention of the appellant is predicated on Section 17 of the Act and
the fact that the investigation in the present case was not conducted by the police
officer by the rank and status of the Deputy Superintendent of Police or equal, but by
Inspector Rohtash Singh (PW 5) and Inspector Shobhan Singh (PW 7). The contention
has to be rejected for the reason that while this lapse would be an irregularity and
unless the irregularity has resulted in causing prejudice, the conviction will not be
vitiated and bad in law. The appellant has not alleged or even argued that any
prejudice was caused and suffered because the investigation was conducted by the
police officer of the rank of Inspector, namely, Rohtash Singh (PW 5) and Shobhan
Singh (PW 7).
28. This Court in Ashok Tshering Bhutia v. State of Sikkim [Ashok Tshering
Bhutia v. State of Sikkim, (2011) 4 SCC 402 : (2011) 2 SCC (Cri) 258 : (2011) 2 SCC
(L&S) 697] referring to the earlier precedents has observed that a defect or
irregularity in investigation however serious, would have no direct bearing on the
competence or procedure relating to cognizance or trial. Where the cognizance of the
case has already been taken and the case has proceeded to termination, the invalidity
of the precedent investigation does not vitiate the result, unless a miscarriage of
justice has been caused thereby. Similar is the position with regard to the validity of
the sanction. A mere error, omission or irregularity in sanction is not considered to be
fatal unless it has resulted in a failure of justice or has been occasioned thereby.
Section 19(1) of the Act is matter of procedure and does not go to the root of the
jurisdiction and once the cognizance has been taken by the court under the Code, it
cannot be said that an invalid police report is the foundation of jurisdiction of the
court to take cognizance and for that matter the trial.
9. The petitioner has earlier moved before this Court in Cr.M.P. No. 528 of 2012
challenging the F.I.R. which was dismissed as not pressed. Thereafter the petitioner
further moved before this Court in W.P.(Cr.) No. 446 of 2021 for quashing the sanction
order dated 11.05.2020 which was dismissed by order dated 05.05.2023 holding that
there is no illegality in the sanction order. Thereafter the present case has been filed.
10. In view of above facts, reasons and analysis this Court finds that there
is no merit in the present petition accordingly, this petition is dismissed. However, the
trial will proceed in accordance with law without prejudice to this order. The petitioner
may take all the grounds in the trial.
(Sanjay Kumar Dwivedi, J.)
Satyarthi/
