Punjab-Haryana High Court
Suresh Kumar vs State Of Punjab on 23 October, 2024
Author: Manjari Nehru Kaul
Bench: Manjari Nehru Kaul
Neutral Citation No:=2024:PHHC:140150
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CRR-795-2020
Reserved on : 16.10.2024
Pronounced on : 23.10.2024
Suresh Kumar .....Petitioner
Versus
State of Punjab .....Respondent
CORAM: HON'BLE MRS. JUSTICE MANJARI NEHRU KAUL
Argued by : Mr. Sunil Chadha, Sr. Advocate with
Ms. Sonia Monga, Advocate
for the petitioner.
Mr. Shiva Khurmi, AAG, Punjab assisted by
Inspector Yogesh Kumar.
****
MANJARI NEHRU KAUL, J.
1. The petitioner has challenged the order dated 06.03.2020
passed by learned Additional Sessions Judge-cum-Special Court,
Ludhiana whereby charges under Sections 7 and 13(2) of the
Prevention of Corruption Act, 1988 (hereinafter referred to as 'PC Act')
have been framed against the petitioner in case FIR No.5 dated
22.05.2018 under Sections 7, 8 and 13(2) of the PC Act registered at
Police Station Economic Offences Wing, Punjab Vigilance Bureau,
Ludhiana.
Submissions made by learned senior counsel for the petitioner
2. Learned senior counsel for the petitioner has made the
following submissions:-
2A. that the learned Trial Court gravely erred in framing
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charges against the petitioner under Section 7 and 13(2) of the PC Act.
A bare perusal of the charge sheet clearly reveals that the basic
ingredients required to constitute the offences under these Sections
were entirely absent. Furthermore, for charges to be framed under the
aforementioned provisions of law, there must be specific allegations
relating to the demand, acceptance, or receipt of illegal gratification,
none of which are even remotely suggested in the material on record.
The prosecution has failed to substantiate these essential elements, thus,
rendering the framing of charges as being fundamentally flawed and
legally unsustainable;
2B. that in order to bring a charge under Section 7 of the PC
Act, the prosecution is required to unequivocally demonstrate that there
were both a demand for and subsequent acceptance of illegal
gratification by the petitioner. However, there is not even a whisper of
any allegation to this effect. The complainant never alleged that the
petitioner made any demand for a bribe or even communicated with the
complainant at any stage. Furthermore, the investigating agency has not
presented any evidence, oral or documentary suggesting that the
petitioner was involved in any illicit demand or acceptance of
gratification. In the absence of such allegation, the framing of charges
under Section 7 of the PC Act is wholly unsustainable;
2C. that the allegations in the FIR, as well as in the entire
narrative of the case, are exclusively directed against co-accused
Himmat Singh, who is a private individual. It is undisputed that all the
alleged interactions and transactions concerning illegal gratification
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took place between the complainant and Himmat Singh. The petitioner
had no role or involvement in the same. When the investigating agency
laid out the trap, it was Himmat Singh who was apprehended at the
spot, and he subsequently implicated one Jaspal Singh, from whom the
tainted money was allegedly recovered. The petitioner was neither
present at the scene of the crime, nor was any recovery of tainted
money made from him. There is no material on record indicating that
the petitioner conspired with the co-accused or had any connection with
the alleged transaction of bribe. The prosecution has not even produced
any evidence from which it can be even remotely discerned that the
petitioner had any involvement in the alleged conspiracy;
2D. that the only piece of evidence against the petitioner is the
disclosure statement made by co-accused Jaspal Singh, which, holds
weak evidentiary value, especially in the absence of any corroborative
evidence. It is trite law that disclosure statements made by the co-
accused cannot form the sole basis for conviction unless supported by
independent and credible evidence. In the instant case there is no direct
or circumstantial evidence linking the petitioner to any demand,
acceptance, or recovery of the bribe money. Without such
corroboration, charges under Sections 7 and 13(2) of the PC Act cannot
be sustained against the petitioner;
2E. that the complainant expired on 12.11.2019. In light of the
demise of the complainant, even if the trial were to proceed, it would
serve no meaningful purpose. The complainant's testimony was crucial
to proving the case of the prosecution, and without the complainant, the
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entire case against the petitioner would crumble. Continuing the trial
would, therefore, be a futile exercise.
Submissions by the State counsel
3. Learned counsel for the State while opposing the prayer
and submissions made by the counsel opposite has submitted as
follows:-
3A. that at the stage of framing charges, the role of the learned
Trial Court is limited to assessing whether a prima facie case is made
out against the accused;
3B. that the contentions raised by the learned senior counsel
relate to his defence, which cannot be considered at this preliminary
stage, but would be examined during the trial;
3C. that as per the disclosure statement of co-accused Jaspal
Singh, the bribe amount of Rs.5,000/- was intended for the petitioner,
with Jaspal Singh and accused Himmat Singh each receiving Rs.500/-
for facilitating the transaction.
3D. On a specific query put by the Court, learned State counsel
has, however, on instructions conceded that apart from this disclosure
statement the investigating agency had not gathered any other material
or evidence to substantiate the claim that the petitioner had demanded
or accepted illegal gratification. On a further query, learned State
counsel on instructions has also not been able to dispute that there is no
additional evidence on record, beyond the disclosure statement of co-
accused, to show any conspiracy between the petitioner and the co-
accused with respect to the alleged transaction of bribe.
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Findings of the Court
4. I have heard learned counsel for the parties and perused the
relevant material on record.
5. As per the settled law, at the stage of framing charges, the
learned Trial Court is tasked with determining whether, based on the
material collected by the prosecution, there exists a prima facie case
against the accused. At this stage, the Court is not to evaluate the
defence of the accused or to weigh the merits of the case. If, based on
the material produced by the prosecution, the Court finds reasonable
grounds to belief that the accused may have committed the alleged
offences, it must proceed to frame charges. However, if the material on
record does not disclose the essential ingredients of the offences
alleged, the accused must be forthwith discharged.
6. In the instant case, the petitioner has been charged for
offences under Section 7 and 13(2) of the PC Act which for the facility
of reference are being reproduced hereinunder:-
"7. Offence relating to public servant being bribed.--Any
public servant who,--
(a) obtains or accepts or attempts to obtain from any
person, an undue advantage, with the intention to perform
or cause performance of public duty improperly or
dishonestly or to forbear or cause forbearance to perform
such duty either by himself or by another public servant;
or
(b) obtains or accepts or attempts to obtain, an undue
advantage from any person as a reward for the improper
or dishonest performance of a public duty or for
forbearing to perform such duty either by himself or
another public servant; or
(c) performs or induces another public servant to perform
improperly or dishonestly a public duty or to forbear
performance of such duty in anticipation of or in
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consequence of accepting an undue advantage from any
person, 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.
Explanation 1.--For the purpose of this section, the
obtaining, accepting, or the attempting to obtain an undue
advantage shall itself constitute an offence even if the
performance of a public duty by public servant, is not or
has not been improper.
Illustration.--A public servant, 'S' asks a person, 'P' to
give him an amount of five thousand rupees to process his
routine ration card application on time. 'S' is guilty of an
offence under this section.
Explanation 2.--For the purpose of this section,--
(i) the expressions "obtains" or "accepts" or "attempts to
obtain" shall cover cases where a person being a public
servant, obtains or "accepts" or attempts to obtain, any
undue advantage for himself or for another person, by
abusing his position as a public servant or by using his
personal influence over another public servant; or by any
other corrupt or illegal means;
(ii) it shall be immaterial whether such person being a
public servant obtains or accepts, or attempts to obtain the
undue advantage directly or through a third party.
13. Criminal misconduct by a public servant.
XXX XXX XXX
(2) Any public servant who commits criminal misconduct
shall be punishable with imprisonment for a term which
shall be not less than four years but which may extend to
ten years and shall also be liable to fine."
7. Hon'ble the Supreme Court, in the landmark judgment of
Neeraj Dutta Vs. State (Govt. of NCT of Delhi) : 2022 LiveLaw (SC)
1029 unequivocally clarified the law regarding offences under Section
7 and 13 of the PC Act. Hon'ble the Supreme Court laid down the
principle that the proof of demand and acceptance of illegal
gratification by a public servant is an indispensable requirement to
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prove an offence under these Sections. Hon'ble the Supreme Court held
that proof of demand and acceptance of illegal gratification is sine qua
non for establishing the guilt of a public servant under Section 7 and
13(1)(d)(i) and (ii) of the PC Act; the prosecution must first establish
the demand for illegal gratification and then prove its subsequent
acceptance. This fact can be establish through direct evidence (oral or
documentary) or through circumstantial evidence in the absence of
direct proof. It further went on to hold that mere acceptance or receipt
of illegal gratification, without proof of prior demand, does not
constitute an offence under Section 7 or 13(1)(d) of the PC Act. The
Apex Court explained that the existence of a demand is crucial to
differentiating between mere acceptance and the obtainment of a bribe,
with the latter being punishable under Sections 7 and 13(1)(d) of the PC
Act.
8. In applying these principles to the present case, it is
evident that there was neither a demand nor acceptance of illegal
gratification by the petitioner. The complainant had no interaction with
the petitioner, and as not disputed by the learned State counsel on
instructions also, there is no evidence collected by the investigating
agency indicating that either any demand had been made by the
petitioner from the complainant or any money from the complainant
ever reached the petitioner. Furthermore, the petitioner was not present
when the trap was laid, and no recovery much less of the tainted money
was made from him. Thus, apart from the disclosure statement of the
co-accused there is no material on record to support the allegations
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under Section 7 and 13(2) of the PC Act.
9. Given the absence of any material on record to support the
basic ingredients necessary to constitute the offences alleged, and
applying the law as elucidating by Hon'ble the Supreme Court in
Neeraj Dutta's case (supra), it becomes abundantly clear that the
prosecution has failed to satisfy the essential legal requirements for the
charges to stand. The charges framed against the petitioner under
Sections 7 and 13(2) of the PC Act are without merit, and the petitioner,
therefore, is entitled to be discharged.
10. Accordingly, the instant petition is allowed and the
impugned order dated 06.03.2020 whereby charges under Sections 7
and 13(2) of the PC Act have been framed against the petitioner, is set
aside.
23.10.2024 (MANJARI NEHRU KAUL)
Vinay JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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